Jury Voodoo and Racial Politics

When Linda Greenhouse proposed that we rid jury selection of peremptory challenges to eliminate the insidious effects of racial discrimination, my response was that they’ll have to pry peremptories out of my cold, dead fingers.  Adam Liptak has picked up on the issue, and offers a conflicted vision.

Jeff Adachi, San Francisco’s elected public defender, said peremptory challenges promote fairness.

“You’re going to remove people who are biased against your client,” he said, “and the district attorney is going to remove jurors who are biased against police officers or the government.”

But then:

Abbe Smith, a law professor at Georgetown, would go further.

“Simply put,” she wrote last year in The Georgetown Journal of Legal Ethics, “prosecutors have abused the privilege of exercising peremptory challenges and should lose it.”

Now if only prosecutors lost peremptories, I wouldn’t necessarily take issue, as that would be great for the defense. But anyone who thinks peremptories for me but not for thee would ever happen is batshit crazy.  Plus, there are legitimate reasons why prosecutors should have peremptories for the purpose of picking a jury that is viable for conviction of bad dudes who do really horrible things.  Let’s not forget, all defendants are not as innocent and wonderful as the ones I’ve been blessed to represent. /s.

In the name of ending discrimination, it’s really not all that hard to see legislators reacting, “well, if peremptories are evil, let’s get rid of them, like the “experts” are demanding. Problem solved.”  On the other hand, Jeff Adachi nailed a subtle but critical point, that much as we might like to pick a jury favorable to our side, what we really hope to accomplish is to pick a jury that isn’t biased against us.

In other words, the best we can reasonably expect is neutral. A jury that favors our side is pie in the sky.

What explains the difference in perspective?  The experience in the trench of actually picking juries.

There’s a great Star Trek episode, The Squire of Gothos,* where an alien watches Earth from his planet. He prepared a feast that looks spectacular, but upon chowing down, Spock and McCoy engage in this witty repartee.

MCCOY: You should taste his food. Straw would taste better than his meat, and water a hundred times better than his brandy. Nothing has any taste at all.
SPOCK: It may be unappetizing, Doctor, but it is very logical.
MCCOY: There’s that magic word again. Does your logic find this fascinating, Mister Spock?
SPOCK: Fascinating is a word I use for the unexpected. In this case, I should think interesting would suffice.

You see, while the guy can see food from a distance, he can’t taste it, so he may know what it looks like but not its flavor.  This analogy always comes to mind when someone’s “expertise” comes from watching from a distance rather than doing.

I raised my problem in a twit at Liptak, Stop asking lawprofs to explain shit they know nothing about. The conduct of voir dire isn’t of merely academic interest to trial lawyers. It’s real. Our clients get acquitted or convicted based on what juries do, and we don’t need these Squires of Gothos telling us how something tastes when they’ve never tasted it.

Some lawprofs got the point.  Others got their panties in a twist.

Putting aside that Ziff misrepresents what I said, words are better spent dealing with the big issue than picking at the scab of academic butthurt.  You’re free to say whatever you like about racism in voir dire, provided you don’t represent yourself to have any more knowledge than anyone else who has never actually tasted voir dire.  When Liptak calls for comment, tell him that you have strong and deeply held opinions that are no more real than my views on quantum physics.

Yes, actual experience matters. I know, that hurts your scholarly feelings, because when you read all about stuff like jury selection and racism, it’s almost the same as being right there in the well, having to actually pick one person over another to sit in judgment of your client.  Almost.

It’s true that this puts a damper on the ability of academics to do what they most desire in the world, see their name in the New York Times next to the word “expert” or “scholar,” but you’re playing with fire. My fire. Other trial lawyers’ fire. People’s lives.  And your fragile feelings aren’t worth fucking up the only tool we have to try to get rid of the folks who are drooling to hang the defendant.

You disagree? Who cares. You don’t get a vote. Most academics don’t even know how the mechanics happen, assuming that jury selection goes on as long as necessary so that lawyers can make thoughtful inquiry of potential juror after juror, probing their innermost thoughts and, if artful enough, bringing forth their hidden prejudices.

In federal court, a jury is picked in a few hours. The judge does 80% of the voir dire (asking such critical questions as, “can you be fair?”), then turns it over to the lawyers to question the panel in, say, a half hour tops.  That’s twelve potential jurors, plus four alternates, in a half hour. Do the math. I’ll do it for you: that’s less than two minutes per person.

I’ve long called voir dire voodoo, as we base our decision to exercise peremptories on gut instinct and gross stereotype.  Poor reasons indeed, and certainly prone to racial discrimination both ways.  But when you catch that guy in seat 7 giving the defendant the eye, and yet he swears he will be fair and unbiased, you want him off your jury.  That’s peremptories.

So prosecutors have a cheat sheet to explain their race neutral reason to strike blacks?  To tell you the truth, it’s not all that hard to come up with a racially neutral reason for pretty much anything.

“Stupid reasons are O.K.,” said Shari S. Diamond, an expert on juries at Northwestern University School of Law. Ones offered in bad faith are not.

Absolutely true, but this is beyond obvious. The problem is figuring out which is which.  And unlike the leisure of 10,000 words of lawprofspeak, the judge will give us 10 seconds to argue why the prosecutor’s strike violates Batson, after which he’ll take three seconds to decide it doesn’t. Because that’s how it’s done in real life, horrible as that may seem to the scholarly academic.  Go tell the judges this sucks.  I’m sure they will change everything because you say so.

Until you know the reality in the well, keep your friggin’ noses out of how lawyers actually pick juries. You get your name in the paper, but we stand there watching the jail door slam shut on human beings.

As any chef will tell you, you have to taste the food to know if it’s cooked well. Looking at it from a distance means squat.

* H/T Nino Pribetic, who knows his Star Trek.

38 thoughts on “Jury Voodoo and Racial Politics

  1. Patrick Maupin

    I don’t know what’s wrong with me — I’m chosen for jury duty more often than most of the people I know. Next time, I’m going to write “Branch Davidian” for the “Religion” question.

      1. Patrick Maupin

        voir dire seems pretty lenient to the lawyers around here — even though they speak in generalities, a potential juror can get a really good feel for where the case is going from the questions posed.

        I’m pretty sure after what I heard in my most recent voir dire (where there weren’t enough for a jury after all the strikes for cause) that, if lawyers could read minds, it’s the prosecutors who would have stricken me after picking up on thoughts like “gee, it sounds like the state’s worried they’re going to have a hard time proving their case to the skeptical.”

            1. SHG Post author

              Four times is a lot. A buddy of mine has tried over 250 murders to jury verdict. But you’ve got good data points too.

            2. Patrick Maupin

              I understand your point, and appreciate your wry humor, but my assertion was about a particular case, where, as I said, if the lawyers had actual mind-reading skills (not needing to rely on experts or hunches), they would have realized that the state would have a hard row to hoe with me. This case was a domestic violence strangulation case with nobody dead, no witnesses, and no visible marks or proof of damage, lasting or otherwise.

              In a sane world, the state probably wouldn’t have bothered bringing the case. Listening to the discussions between the lawyers and my fellow prospective jurors, I understood they had a more than even chance until the judge got finished with his strikes for cause, at which point they didn’t even have a jury, and we all got to go home.

            3. SHG Post author

              My point is that it’s true of all voir dire. Your case wasn’t unusual (and certainly not worth recounting). Nobody really knows what goes on in another person’s head. We may think we do based on what they say, but never really. And that’s certainly true of jury selection.

              So we stereotype, use proxies, watch closely, get a feeling and go with it because we have nothing else.

  2. Piedmont

    “We’re not sure how it works, but it mostly does” isn’t something legislators like to hear. I don’t think they’re much happier when you point out that sometimes you just have a gut feeling (especially if you’re in a small jurisdiction where people know each other, at least by reputation).

    1. SHG Post author

      Jury consultants say it’s science. They charge a lot of money for their science, which ultimately defies proof of whether it works or not. Having picked juries both ways, I don’t think there’s any science to it, but that’s just me.

  3. Turk

    The one thing people don’t understand if they haven’t actually picked juries — including both academics and journalists of course — is that it isn’t about selecting but de-selecting.

    You get rid of those you think will kill you and are stuck with the rest.

        1. SHG Post author

          It doesn’t really matter if academics notice. They don’t care as long as the newspapers spell their name right. What matters is that the media stops asking academics for their “expert” opinions on things they know nothing about.

          Even so, no. But if you disagree, feel free to say it as if you came up with the idea that no one ever thought of before, even after it’s been said twice right in front of you, somewhere else. I’m sure everyone will be awed by your awesome illuminating novel thought.

      1. Turk

        Third time? Are you on drugs?

        These folks didn’t get it the first gazillion times this stuff has been written.

    1. Andrew

      Your comment did suggest that you came up with this epiphany that no one had thought of, which struck me as pretty screwy given that it was a primary point made in the post. It reminds me of the guy who responds to a title in a tweet without reading the article.

  4. Eliot Clingman

    Deciding whether peremptory challenges tend to favor the defense or prosecution would require statistical research that would be very hard to set up. So unfortunately, there is little available. It seems quite possible that they on average favor the prosecution, on the theory that they reduce randomness and thus the possibility of one “not guilty” vote hanging a jury.

    Given that the right to trial by jury is gradually becoming a constitutional fiction, the more (real quantitative not bogus) research into jury trials the better.

    1. SHG Post author

      So you have no clue what you’re talking about and felt like commenting anyway, and couldn’t care less whether you make people stupider. Got it.

      1. delurking

        Well, I have some opinions on quantum physics I’d like to share.

        Actually, I’m going to have to pile on, dear host. He said that it isn’t known if peremptory challenges favor one side or the other, and I have to say it seems very unlikely that anyone knows whether on average they favor the prosecution or the defense.

        You seem quite convinced that they favor you over your opponents, and it is quite possible that you are good at using them and that they do favor you. Even if that is true, it doesn’t mean that the same holds for the population of defense lawyers as a whole. However, your description of your basis for your opinion, unfortunately, sounds like a lot of similar bases that have turned out wrong. I don’t know what sort of research has been done in the legal community, but your description sounds very similar to the descriptions of many doctors about their expertise with certain procedures or therapies that ended up being demonstrated to be quite useless when a real controlled study was done. You very description of how voir dire actually happens supports the impression that you have no way of knowing if even you are on net helping or hurting with your voir dire choices. Heck, even you say it is voodoo.

    2. David Woycechowsky

      I was going to make basically the same comment you made, Eliot. Seems like common sense. Would have been interesting if SHG explained why it doesn’t work that way based on his experience. Anyway, you are not alone in your stupidity, and that is the nicest tummyrub of all!

      1. SHG Post author

        First, I note the obvious: Your agreement is the kiss of death to thought. Second, because this isn’t for the amusement of the ignorant. And no, my job here isn’t to enlighten every clueless dumbass whose never picked a jury as to why they’re a clueless dumbass whose never picked a jury. You are not entitled to my wasting my time on every idiotic thought that pops into your head.

        Aren’t you glad you asked?

  5. William Doriss

    I picked my own jury in CT v. Doriss, 2002. I believe that qualifies me to comment here. CT is only one of four (?) states that allows “individualized sequestered voir dire”. That means the jury is not selected en masse by the judge in a matter of minutes, pending objections from the tables–for cause or whatever
    miscellaneous objections they might have.
    That is how it’s done in Massachusetts where I now live. In CT, The Defense Table, and client defendant, get to pick their own jury, as strange as it may seem. However, it works, trust me. Don’t knock it if you have not tried it, or sat at the defense table facing three life sentences over a trifle. Yes Virginia, there is a Santa Claus, but he’s not a judge in Superior Court.

    So it took us three days of court time to pick six jurors and two alternates. My PD and I noticed that whenever we were quick to approve a certain juror, the prosecutor-lady would use one of her peremptory challenges, and our desired pick was excused. When we figured this out, we changed our strategy: When we liked a particular juror, we took our sweet time and deliberated uselessly for five minutes or so, signalling to the prosecution table that we were sitting on the fence. When we did that, the stewpid prosecutor-lady–who will go unnamed–was fooled into thinking that we we not particularly eager to pick this juror, and she let it slide. It worked.

    Fast Forward: A particularly noteworthy CT CDL and bLAWger–who will go unnamed–posted an opinion some years ago stating that he thought Individualized Sequestered voir dire was taking up too much court time and should be abolished. Yours truly, having benefited from such excessive court time in the bloody state court system, submitted a comment strongly opposing the idea, and called it an abomination. His comment was posted at the time. More comments were forthcoming–most posted over subsequent days/months/years.

    Fast Forward II: Using two overworked and underpaid Public Pretenders, we managed to beat eleven criminal charges, including nine felony counts, and 67 year prison thru jury verdict. The State lost,… Big Time. (Two misdemeanor convictions were “engineered” by the Court itself, illegally and unlawfully.)
    I know, I was there and I’m repeating myself, and apologies to the Host and the readership. But this is Important!

    Anyone who does not believe in the importance of selecting a jury should ask Mr. O.J. Simpson what he thinks?!? And finally, we did attempt to get a black juror selected and were peremptorily challenged twice by the (white) lady-prosecutor. No, I’m not making this up. And I am a born-again WASP whose sympathies lie with the downtrodden and falsely arrested in the land. Why would we do this? We felt that a minority person on the jury might have the strength of his/her convictions, and not fall for the winks and nods from the presiding judge (also a woman, bye the way.) No luv lost between me and the lady judge, unless it’s Judge Judy (on TV). TV justice is not the real deal, no way Jose.

    End of story.

    1. SHG Post author

      I’m letting you have this one, Bill, because it’s actually one topic and, for once, the story of you is relevant. Don’t let it happen again.

  6. Pingback: The Tyranny of Experience | Simple Justice

  7. Amy

    Just FYI, Abbe Smith actually is a trial lawyer. She’s a professor, yes, but she also supervises and co-counsels a dozen or so jury trials a year, and was a public defender before she became a professor. No idea whether the others know what they’re talking about, but she’s the real deal.

      1. Amy

        No, I haven’t counted how often she has picked juries. But she was a Philadelphia PD for many years, and she runs a training program for defenders where she tries felony cases alongside her students. I’ve personally seen her participate in jury selection on at least one occasion. Do I know how often she does it? No. But I know she’s a trial lawyer, and that she actually takes her cases to trial, and that since the cases are felonies, they get juries. She may be a professor, but she’s also an active trial lawyer alongside and as a part of her academic work.

        1. SHG Post author

          It’s my understanding that when she was a federal defender, she did “special projects” and was never a line PD doing trials. And as far as I know, her students do not try felony cases (god forbid, a flagrant constitutional violation if ever there was one), but do the “leftovers” of habeas and post-conviction motions. No human being should ever, under any circumstances, have their case tried for practice by a student. It’s outrageous and ridiculous, the sort of ideal only a twisted academic could think is acceptable.

          When you say you saw her “participate” in jury selection, that’s a peculiarly vague thing to say. Did she pick in a jury in a felony trial or not?

  8. Pingback: "What if we abolished peremptory challenges?" - Overlawyered

  9. Daniel

    On the only time I got far enough to be questioned on voir dire in a criminal case, the prosecutor asked me if I hold police testimony to a higher standard than “ordinary” witnesses. I couldn’t lie, so I said, “yes.” He asked me why and I again told the truth that I had caught the testifying police officials trying to commit a cover up in a case against me. The prosecutor dismissively said, “A cover up?” I just said, “yes.” He asked no more questions out of only about 5 questions total, then he peremptorily challenged other jurors and came back and struck me.

    On another occasion, I watched a jury trial voir dire in a murder case where I was called for jury duty but not questioned. The prosecutor didn’t make one peremptory challenge before the jury was picked. The defendant made all of his 20 peremptory challenges and the prosecutor saying each time, “this juror is acceptable” then the defendant peremptorily striking the juror for each of his 20 challenges and I was thinking to myself, “man, the defendant is going to lose this case because the voir dire makes the prosecutor look so confident in his case that he doesn’t need to strike even one prospective juror.”

    Those defendants couldn’t have obtained an unbiased jury because one of the two defendants murdered a woman in front of her child while trying to rob a bank. The courtroom was filled with prospective jurors, with no standing room, plus prospective jurors standing in the back because of no seats left to sit in. The judge told all of the prospective jurors who could not give the defendant a fair trial to just get up and leave with no questions asked. I estimate about 1/3 of the prospective jurors remained.

  10. BRS

    Really enjoyed this article very much — as I am a criminal defense attorney on the line at a PD’s office in south Florida. Lawprofs are just completely clueless as to how trials operate in the real world. There ridiculous theories and abstract concepts do nothing for those of us in the trenches on a daily basis and I’m glad you are attempting to get media to understand that the place to go for actual quality information regarding the happenings in criminal jury trials is…surprise! actual criminal trial lawyers. The idea that a law prof have helpful information to provide is just absurd, and I suppose having essentially zero experience practicing criminal defense would lead one to believe, absurdly, that peremptories are the problem (THE FUCK!!!). One thing I would add though, in addition to law profs needing to shut the fuck up, the supposed “policy analysts” at these stupid think tanks are even worse than the profs and know even less…but there they are, with a degree in “public policy” trying to tell me how law enforcement practices work and what will lead to “better” police practices. If I have to hear one more of these “analysts” tell me that cop body cams will be a cure all for police abuse, I might just kick them in the shin with 20 pound boots.

Comments are closed.