Passing Judgment on Selection of Juries

They say the two things you should never see being made are a sausage and a law, but you can add a third to the list:

A jury.

If you really want to develop a healthy contempt for the law, go down and see a jury being selected. The admission is free and it is worth every cent.

Selecting a jury (called voir dire because to justify the cost of law school, lawyers like to call things by names nobody else understands) is supposed to be about fairness and freedom from prejudice.

Too often, however, it is just the opposite. That’s because both sets of lawyers are filled with all kinds of hokum about what kind of jurors they want.

Some years ago, I spent months researching and writing about jury selection. And I collected a long list of what some lawyers really look for in a jury.

The prosecution wants homeowners and the defense wants apartment dwellers. The defense wants men with beards or mustaches and the prosecution wants them clean shaven.

The defense wants younger people and the prosecution wants older people. Neither side really wants educated people, though the prosecution tends to want them less than the defense.

“In sex offenses, there is the feeling that certain ethnic or racial groups are more tolerant,” Judge Marvin Aspen, who now sits on the federal bench but then was a criminal court judge, told me. “But if the crime were one of violence, those same ethnic groups would be accepted (by the prosecution).”

A lawyer once told me he didn’t like red-haired people on his juries and another said he tried to get rid of left-handers. (Don’t ask me how he knew which jurors were left-handed. He may have had a sixth sense.)

“Mythology,” Judge Aspen said. “Jury selection is essentially mythology.”

And he is right, though it can be even worse than that. While both sides are supposed to pick people who can try the case “without sympathy or prejudice,” both sides are really looking for people who have plenty of sympathy and prejudice. Sympathy to their side and prejudice to the other.

Failing that, they want lumps of clay. They don’t want independent thinkers. They want people who can be manipulated to their way of seeing the facts and viewing the case.

And so what do you end up with when all the selecting is done?

“Mediocrity,” Judge Aspen said. “The state gets rid of educated people, the defense gets rid of something else. Pretty soon you’re chopping from both ends and you end up with 12 mediocre people who have to judge extremely important and complex matters.”

If they are able to, good judges try to stop a lot of the nonsense involved in jury selection. And, generally speaking, the more a judge is involved in the process, the more sensible that selection becomes.

But U.S. District Court Judge Gerhard Gesell, who is presiding over the trial of Oliver North, seems to be going out of his way to make sure mediocrity is what he gets on his jury.

Judge Gesell does not want any jurors who saw or heard anything about Oliver North’s testimony before Congress in 1987. And Gesell even went as far as expressing his displeasure with ABC News last week because ABC broadcast part of North’s testimony on the evening news. Gesell interpreted this as an attempt to make his jury selection even more difficult.

But Gesell is off base for two reasons: First, it is not the role of a judge to control what the media publish or broadcast. The American Bar Assn’s. own standards, published as “The Rights of Fair Trial and Free Press,” point out that while the rights of the defendant must be safeguarded, the standards “do not impose restrictions upon the freedom of the media to publish information they are able to obtain through their own initiative.”

And second, it is not necessary for a person to be ignorant of a case in order to become a juror and pass judgment on it. If that were true, it would be impossible to try many cases. The Iran-Contra affair was one of the biggest stories of the decade and was followed by millions of people.

And they should have followed it. They should have watched it and read about it. This is what an informed society is all about.

Some people are proud of never reading newspapers or watching news on TV or listening to it on radio. They are modern cave dwellers. To some judges, they may make the ideal jurors. But they don’t make ideal citizens. And they are not good for America or for the justice system.

The true standard for picking jurors is not one of picking people who know nothing about a case. It is picking people who are not prejudiced by what they know.

I covered the jury selection and trial of John Wayne Gacy, convicted murderer of 33 young men and boys, who buried 27 of them beneath the floorboards of his suburban Chicago house.

This got a wee bit of publicity. Such as headlines day after day after day. And videotape of the body bags being pulled from the crawl space beneath his living room.

Was it possible to find a person in the entire state who didn’t know anything about this case? Probably not. Was it possible, however, to find people who had not formed any opinions as to Gacy’s guilt or innocence and thought they could give him a fair trial? Yes, it was.

And the same standard should apply to the North jury. We don’t need a nation of cave dwellers. We don’t need a jury of dummies who try cases based on which set of lawyers manipulate them best.

Juries need people who lack sympathy or prejudice.

They don’t need people who lack a brain in their heads.