Twelve skeptical men and women.

For the last few days, I've been reading the state-court record in one of my cases. This is one of my favorite parts of my practice, particularly when the case involves a jury trial. I discovered the pleasure of reading trials when I was clerking, and this became one of many reasons behind my realization that I am better suited to appellate practice than trial lawyering.

The trial transcript is sort of like the script to a play. Occasionally, one of the players improvises and things get really interesting, but for the most part, everyone says what they're supposed to say, and the story unfolds before me. I can almost see and hear the proceedings, particularly when the judge or one of the lawyers is prone to linguistic flourish or idle chitchat on the record. Often, the "actors" will comment on current events or the weather or local happenings, adding additional color and context to the proceedings.

But my favorite part -- thought it is often the most tedious and the least relevant to my case -- is jury selection. This portion of the trial is mostly ad-libbed, and the responses given by prospective jurors to voir dire questioning delight and shock and disturb me. I love learning about the lives and perspectives of these randomly selected members of the community. I become engrossed in reading about their jobs and children and ex-spouses and how their home was burglarized in 1989 and the time they got pulled over and harassed by the cops because their skin was the wrong color. In cases from rural Colorado and Oklahoma and Texas, I've been surprised (naively) to learn how very many people keep guns in their homes and go hunting for fun and relaxation. And I'm always a little saddened to realize that many, many Americans have little faith in the criminal justice system, think that everyone lies on the witness stand, and believe that people who are acquitted "get off" on "technicalities."

I've never served on a jury, nor have I tried a case to one. But each time I read voir dire and jury selection, I am amazed that the lawyers have seated certain jurors and surprised that they have challenged certain others. But then again, if the case is on my desk, then the jury must have returned an unfavorable verdict, and so whatever science or art or blind faith the defense attorney employed in making his selections has fallen short of the mark. My favorite jury-selection-method story comes from a case I covered as a law clerk. The trial took place in Guam, where it seems everyone is related by blood or marriage to everyone else, and virtually every juror was fewer than six degrees of separation from the defendant, a lawyer, the judge, or a witness. The judge, attempting to screen out those whose relationship to a trial participant was too close to permit unbiased consideration of the facts, developed a litmus test I've not seen before or since. After discussing the prospective juror's relationship to the person in question, and asking whether the juror could review the case objectively, the judge asked this dispositive question: "Do you barbecue together?"

In the trial I'm reading now, the defendant raised an insanity defense. During individual questioning, almost half the prospective panel expressed some version of the sentiment that pleading not guilty by reason of insanity is a "cop out." The prevailing view among these prospective jurors seemed to be that anyone who commits a terrible crime must be "crazy," but must also have known what he was doing. From where I sit, having seen many cases in which the defendant's mental health problems rendered him, as the law requires, incapable of distinguishing right from wrong, this view is dangerously short-sighted. And it caused me to wonder what The System (as so very many of the jurors seemed to think of it) can do to revise this opinion and ensure that individuals who will be gravely at risk and a danger to themselves and others in prison receive the medical care and supervision that might -- just maybe -- enable them to rejoin society.

More broadly, I wonder what lawyers and judges and police and politicians can or should do to help the average American understand the importance of jury service and recognize that the criminal justice system is not as it seems on Law & Order (to which I admittedly am addicted) or Perry Mason. As one of the lawyers commented in the transcript I'm reading, in response to a prospective juror's complaint about the length and ennui of the jury-selection process, in real life we don't get to investigate a crime, find the suspect, have a trial, and get a verdict all within the span of a one-hour show.

Comments

[jd2be]

I did an externship at our Court of Appeals last year, and couldn't agree with you more... I wonder if I should pursue appellate work. I LOVED reading the transcripts, and some of the voir dire questions were incredibly inventive (although no BBQ references) ... I remember several cases where the attorneys referenced Law and Order and its ilk-- there seems to be a definite belief by the general public that trials can take place, in their entirety, in less than an hour!
Anyway- I've been reading your blog for a few weeks (after it was linked by Evan Shaeffer), and really enjoy it. Thanks for allowing us a glimpse into your life. Very inspiring.
Best-j