On just and fair juries

Yesterday, a well-respected legal scholar from a top law school appeared on the PBS News Hour and declared that George Zimmerman had received a “fair trial”. The subsequent interviews and statements from some members of the jury – particularly juror B37 – have, on the other hand, led many people to question whether the trial was in any way fair, much less just. Some have concluded that Juror B37’s comments suggest that she carried strong preconceptions about the facts of the case and was unwilling to weigh all the evidence equally and impartially. I am hardly surprised.

In the winter of 2013, I was called in for jury duty in Los Angeles County. I arranged to fulfill that jury duty during my spring break week so that I could participate without affecting my teaching or research schedule. I did this because I fully expected to serve on a trial, if I was selected.

The first day of my service, I showed up early at the court house. After hours of sitting in a jury waiting room, I was finally asked to go to a court room to be interviewed by the judge, the prosecutor and the defense attorney. When I arrived at that room (and after yet more waiting), I learned that it was a murder trial. Sitting in the room was a man who was on trial for allegedly killing a young woman outside a restaurant in a poor part of town.

Over the next two days, I sat through the interviews of about 40 of the other potential jurors. I was to experience a series of events that would convince me that the concept of a “fair trial” is one probably only really ever played out on television.

The panel to be interviewed first contained twelve vastly different people. I listened intently to each. I thought carefully about which of the individuals I would choose and which I would excuse.

Leading the pack of individuals I would have excused was a middle-aged, apparently middle-class white woman; she reported that she was elementary school teacher and that she was married with children. Within moments of the inception of her interview, she stated categorically that she could not serve adequately. She said that her job would not permit her to be off for the expected duration of the trial (1 week). Additionally, she disclosed that she suffers from a serious mental illness that would make her ability to follow the facts of the trial and to render an impartial decision essentially impossible. She grew animated and emotional during her discussion of her suitability. As her interview progressed, she approached the point of being hysterical, suggesting that at least some part of her self-reported instability was true.

On the other end of the spectrum was a young man – a Hispanic, recent college graduate who was in the process of looking for a job that would start his career. He spoke clearly, intelligently and decisively. He indicated that he would be able to be completely impartial and would have the time to serve.

Neither of them reported any factors that would suggest they were biased (prior arrests, associations with the victim or defendant, strong preconceptions about the defendant and/or witnesses against him).

The young man was the first to be dismissed. The woman was retained.

Over the rest of that afternoon and the following morning, I heard even more shocking disclosures.

I saw a woman that wept during her interview because her sister had been raped and murdered. She was dismissed because she was viewed as biased by her life experiences. Apparently, only those few who have never been a victim of a crime are able to judge others impartially.

I saw a woman profess that the criminal justice system was unfair because her son had been arrested and convicted for a DUI (he was, admittedly, drunk and in a car with the keys in the ignition, but it was stopped at the time – leading to her conclusion that it was a miscarriage of justice). She was retained in the jury pool.

I saw an older man, a naturalized immigrant, indicate – pretty convincingly – that he really only understood about 30% of what was said in court. He was excused.

I saw a woman who openly stated that she found it almost impossible to believe that a police officer would tell a lie or could be wrong about the facts (her father-in-law was a police officer). She was retained in the jury pool.

I sat while a woman asked, during the pre-trial interviews, whether it would become clear during the trial whether the defendant was an illegal immigrant (he was Hispanic). She asked this because of her belief that the fact of whether he had committed a crime to get into this country would bear on whether he was guilty of this murder. She was excused.

I listened while a Beverly Hills septuagenerian who proclaimed that she was the confidant to three governors and one president chastised the defense attorney for “insulting her intelligence” when he asked if she would be able to vote not guilty if the prosecution failed to prove its case. She was retained in the pool.

Of course, I also listened while some reasonable, intelligent people – of variable ethnicities and socioeconomic strata – answered the questions posed to them. Most – yes, most – were excused.

And finally, I listened while I was interviewed myself. I was finally called to be questioned late on the second day. After I indicated, in response to a question, that I was a Professor of Psychology, the prosecutor approached me and asked if I was capable of putting aside my formal training in order to render a decision on the facts of the case at hand.

Though I was unsure why someone would want a juror to put aside their knowledge and training during decision-making, I replied that I would be able to make a fair and even-handed conclusion on the facts of the case in the way that any other reasonable person was.

She dismissed me.

I left that room wondering who the defendant was, what his life was like before and how he could ever get a fair trial from people like this. I had no sense of whether he was a murderer or whether he was innocent, but it seems to me that it does not matter either way since he, in my opinion, cannot get a fair trial on the facts. I left wondering how the highly paid judge and attorneys could sleep at night knowing that they were creating such potential for inequity and unfairness.

When Juror B37 stood up yesterday and shared her views and beliefs with the world, I wasn’t surprised a bit. Her ignorance, bigotry and self-assuredness reminded me totally of the people that the court seemed ripe to choose in the trial I experienced. It seems to me that, even if the jury selection process was completely random, it could do better of choosing jurors than it does by intention. With this in mind, all the claims that Zimmerman got a “fair trial” seem to fall short of anything approximating the truth.

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3 comments

  1. Well… the whole point of voir dire and jury selection is for the benefit of counsel on both sides. They get to choose the people that they think will be most receptive to their case. It’s fair because both sides get to excuse the same number of people (after the judge does her excusals).

    If the Zimmerman jury was biased then surely it was the fault (or bad luck) of the prosecution in making the wrong choices. The system only comes into play when deciding who among the general population can make it into the pool in the first place (eligibility and all that).

    Note that my experience is based on having served on a jury in California. I assume that the process is the same elsewhere but I can’t be bothered to look it up at the moment…

    1. There are two potential meanings when someone says a “fair trial” has been had.

      Your point, which is arguable, is that a trial is fair when everyone is equally subject to the same, potentially suboptimal rules.

      On the other hand, what I think most people want to believe is that a “fair trial” means the rules themselves fairly endorse a comprehensive, reasonable and effective examination of the facts.

      When all is said and done, perhaps both sides (the prosecution and defense) are subject to same rules during jury selection.

      But if both engage in activities that conspire to compromise the quality of the decision-making of the empanelled jury, the process itself can be said to be unfair.

      Unfair to the victim … and unfair to the society at large that wants JUSTICE along with fairness.

      1. Is it possible to have better rules? I can’t think of anything fairer. You simply can’t exclude people from jury service on the basis of their decision-making or reasoning abilities.

        The judge has the ability to excuse people herself. If she thinks someone will not be impartial or that serving will be an undue hardship on their lives, she can remove them.

        In practice, sure lawyers in certain cases probably prefer dumb juries or emotional juries or smart juries or whatever. But can you actually expect a lawyer ever to voluntarily act out of their client’s interest by, say, picking reasonable jurors when unreasonable ones would be more favorable to their case? How fair would that be to the client?

        The only solution I can see is impractical: increase the N of jurors. Make it 50 jurors and change the threshold for percentage of votes needed to convict (85, say). Then statistics will even out the composition of each jury.

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