To Strike or Not to Strike:

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ABSTRACT

Current jury selection method makes the system prone to exploitation and abuse. Current selection procedure eliminates those candidates who are more aware about current affairs, who show high level of intellectual abilities, and demonstrate signs of critical mind. The current system creates less random, less diverse, and less competent juries. Thus, it compromises the quality or fairness of jury trials. The paper, demonstrates the weaknesses of the jury system and suggests four potential reforms, which require further study.


To Strike or Not to Strike:

Selection by Elimination Creates Left-over Juries  With Less Diversity and Competence 

Edip Yuksel, J.D.
www.19.org

 

“A jury usually consists of twelve men and women chosen form the community. They are supposed to be totally impartial. Lawyers on either side will question prospective jurors; and the lawyer can “challenge”?that is demand dismissal of?any who seem unsuitable for one reason or another. A certain number, too, can be “peremptorily” challenged, that is, for no legal reason at all. Defendant’s lawyer may have a hunch that this sour-faced, mean-looking man would be deadly for his client; he can get the man excused by peremptory challenge.” (American Law, Lawrence M. Friedman, W.W.Norton & Company, 1984, p. 165)

“First, the most competent citizens are permitted to escape the jury pool. The pool is whittled down further by peremptory challenges, which allow lawyers to strike a potential juror from the panel without giving reasons. The lawyers have reasons, of course, often based on stereotypes of race, gender, age or income that lead them to believe a particular candidate will disfavor their client. Then the trial begins, when jurors face complicated testimony and evidence that judges and lawyers do little to help them understand.” (The Jury: Disorder in the Courts, Stephen J. Adler, Main Street Books, 1995).

The American jury system, regardless of its shortcomings, is a remarkable and unique tool in intimately involving citizens in the legal system. This involvement not only provides continuous justification of American legal system, it also allows politicians and social engineers to observe the heartbeats of common folks. Jury system also provides mandatory education for randomly chosen citizens regarding their rights, duties and the legal procedure. It gives them a sense of direct participation in the legal system and government. The power of deciding guilty or not guilty in criminal or civil cases raises them to a position even higher than the government and big companies. However, the current jury selection method makes the system prone to exploitation and abuse. Current selection procedure eliminates those candidates who are more aware about current affairs, show high level of intellectual abilities, and demonstrate signs of critical mind. The current system creates a less random, less diverse, and less competent juries. Thus, it compromises the quality or fairness of jury trials.

Especially, in high-profile cases, where jury selection becomes one of the most crucial elements for success, the system’s shortcoming is aggressively exploited and magnified. Big law firms employ salaried consultants who specialize in evaluating the prospective jurors. They study the profile of every individual in the jury pool and execute a sophisticated jury selection plan, hoping that their talented, articulate and charismatic attorneys will put the jury members into trans. These “left-over” jury members become the target of craftily orchestrated choreography of words, parade of ostentatious expert witnesses, strategic diversions, clever gimmicks, and artistic gestures, etc. Consequently, the credibility of jury system is tarnished.

Like many people, I also think that two recent well-known examples, trials of Rodney King and O.J. Simpson, have clearly demonstrated the weakness of the system and provided hints for a possible solution.

Rodney King’s First Trial

On March 3, 1991, in Los Angeles, California, several police cars chased Rodney G. King, a robbery parolee who was allegedly speeding. Two friends were with him in the car. After a police chase during which he drove through several intersections against red lights, King eventually was forced to stop. Although the two passengers in the car complied with police requests to exit the car and were subdued with minor resistance, King apparently refused to exit the car and was physically assisted in doing so. He was subsequently struck as many as 56 times by officers wielding batons, kicked at least six times, and shot with a Taser electronic stun gun. The beating was administered by three Los Angeles police officers, allegedly at the order of a police sergeant who was on the scene. Twenty-three other law enforcement officers were also present and watched the beating, but apparently made no effort to stop it. There were also several civilian bystanders, including George Holiday, who witnessed the incident. Holiday videotaped the beating of King. King suffered extensive injuries as a result of the beating, including skull fractures and nerve damage to part of his face.

All four police officers were charged with “assault by force likely to produce great bodily injury and a deadly weapon” and with assault “under color of authority”. Prior to the trial on these charges, the accused sought to obtain a change of venue for the trial to a county other than Los Angeles County. The change of venue application, originally denied at trial, was granted on appeal. The California Court of Appeal, Second District, approved the change of venue application, given the extensive pre-trial publicity surrounding the case, the fact that the defendants’ being police officers had caused a high level of indignation and outrage, and political factors involving criticism of the then Chief of Police, Daryl Gates. The trial site chosen was Simi Valley in Ventura County. Simi Valley is a predominantly white, middle-class community 35 miles from downtown Los Angeles. The jury comprised ten white, one Hispanic, and one Asian.

On April 29, 1992, the jury rendered its verdicts, generally finding the accused not guilty of the charges. The reaction to the verdicts was immediate: rioting, which resulted in loss of life and extensive damage to property (more than 50 dead and upwards of one billion dollars in damage).

After change of venue, voir dire, and peremptory challenges a jury without a single black person was selected. Defense was able to use evidence that appeared so patently detrimental to its case to prove itself innocent of the charges. They employed findings of modern psychology to use the video clip of vicious beating scene against the victim. The jurors heard testimony that Rodney King initially resisted the officers’ command to submit to arrest. From this testimony it was argued that King therefore “invited” the beating inflicted upon him. The jury, demographically not representing the population of L.A. and their experience with police, soon was desensitized by defense’s deliberate play of the beating seen over and over, especially in slow motion to depict the natural reflexes of a battered person as aggression. Finally, the jurors were convinced that it was not the police officers but Rodney King who controlled and directed the beating.

O.J. Simpson’s First Trial

Another disappointing jury verdict came several years later in the trial of O.J. Simpson. After a televised car chase on June 17, 1994, the famous hall of fame retired football player was arrested and charged for murdering his ex-wife, Nicole Brown Simpson, and her guest, Ronald Goldman, by stabbing them to death 5 days earlier. The trial became a live TV show. Millions of Americans watched the trial like their favorite soap operas. Finally, on October 3, 1995, jury found O.J. Simpson not guilty of two counts of murder.

Evidence demonstrated that Simpson was an abusive husband. However, the jury, mesmerized by defense lawyers, substituted the relevant picture of the “abusive husband” with the irrelevant picture of “loving father.” Simpson was jealous and ambitious to control his ex-wife. However, the jury believed that Simpson lacked motive. The murderer cut his finger during the slaughter. So did Simpson. However, the jury believed that Simpson accidentally cut his finger and was not bothered by the probability of simultaneity of this “accident” and the crime. Simpson, “the traveler,” was in town during the murder and left the town just after the crime. However, the jury believed that it was another coincidence. According to a limousine driver who was not accused of being racist, at the time when the double murder took place Simpson’s car was not in front of his mansion and he did not respond to the doorbell for half an hour. However, the jury believed that it was just normal to take a nap after calling for a limousine. Simpson escaped after he became the prime suspect. However, the jury found it a normal reaction of a brave, wealthy, prominent and innocent person. The glove found or planted by the racist police officer was identical to the ones found on Simpson’s hand in his previously taken pictures. However, the jury thought that it was just a coincidence. The glove did not fit Simpson’s hand, neither in the court nor in the picture. However, the jury believed that it was majestic evidence, recalling Cinderella and her cruel stepmother, they reasoned that if the glove did not fit they should acquit.

There are numerous “howevers” that the scope of this article cannot hold. Why, despite all the evidences, was a double-murderer acquitted? Was the jury racist? I doubt it. Then why were they fooled by the defense’s theory of a well-orchestrated “racist conspiracy” against Simpson? How can twelve “reasonable” people be fooled by conspiracy theories while there was conspiracy of facts?

The final jury was composed of 9 Blacks, 1 Hispanics, and 2 Whites of whom 10 were women and 2 were men. Out of 12 jurors only 2 were college graduates. The racial composition of the initial jury pool differed considerably from the racial composition of the final jury. The pool was 40% white, 28% black, 17% Hispanic, and 15% Asian. Some other facts about the final jury demonstrates how smart lawyers with deeper pockets can manipulate the system to compose a jury with lower competence and diversity than of the average population. The 250 prospective jurors were subjected to 79-page, 294-question questionnaire including questions proposed by both the prosecution and defense. The defense poured great effort into the jury selection process. The defense consultant coordinated massive data on each of the jury finalists, including their answers to the questionnaire, responses and body language during voir dire, and other data the defense had managed to collect. This data was put into a computer and each juror ranked according to their likely sympathy to the defense. After two months, 12 people were the jurors, which I call the “left-over” jurors:

(1) None regularly read a newspaper, but eight regularly watched tabloid TV shows;

(2) five thought it was sometimes appropriate to use force on a family member;

(3) all were Democrats;

(4) five reported that they or another family member had had a negative experience with the police; and

(5) nine thought that Simpson was less likely to be a murderer because he was a professional athlete.

These people were expected to represent the illusive reasonable person in a murder trial! These people were expected to evaluate the DNA evidence, which was crucial for finding the truth of the matter!

There were many factors in Simpson’s trial that hindered justice: culture of celebrity-worship, racist police officers, clumsy handling of the evidence, skulk of super attorneys, millions of dollars, colors of skins. However, the most important factor in the outcome was the current jury system that invited all other factors to have impact on the verdict.

Selection by Elimination Reduces Quality and Diversity of Jury

I believe that the current jury system, especially where parties spend enormous effort over the selection, most accurately, elimination of the jury, does not serve justice well. Let’s face it. The jury is selected from a pool of population containing a segment that demonstrates real problems in logical reasoning.

Millions believe in the stories of abduction by UFO astronauts. Millions have faith in astrology, the power of stars (that is, hot plasma) on human fate. Millions read the National Inquirer and similar tabloids. Millions follow charlatan evangelists and donate millions of dollars for their dubious causes. Millions call psychics for help. Millions are persuaded by silly TV commercials lacking even iota of information. Millions spend many of their waking hours watching soap operas and tabloid talk shows. Millions are addicted to fiction books, that is, fabricated stories. Millions worship celebrities who are mostly actors and actresses. Millions judge a word by the popularity of its source, rather than the inherent truth-value of that word. Millions are racists and bigots. And, millions hire lawyers hoping that they will twist facts and hide the truth in their favor.

Obviously, a randomly selected jury will most likely contain representatives of this intellectually or morally challenged segment. That’s fine, since the principles of modern democracy require representation or participation without discrimination. Whether we like it or not, we do not have a better choice. To select the so-called “reasonable person,” we cannot subject prospective jurors to a logical and critical reasoning test since it will create many practical and political problems. (Ironically, we ask them hundreds of silly and stupid questions during voir dire!). By definition these people are our peers! Statistically and hopefully, there will be some critical minds among the jury members who will strive to keep reason and critical mind in the jury room. In other words, if is really a random jury, the average IQ of its members should be close to average. Also, more or less, a randomly selected jury will proportionally reflect the presence of minorities.

But allowing attorneys to eliminate those they wish, tend to increase the number of the gullible and the weak minded in the jury; presumably they are easy customers of conspiracy theories, irrelevant claims, fallacious arguments, hallo effect, and charisma. Though, the IQ scores of jury members are not written on their foreheads and perhaps attorneys do not intentionally focus on their intelligence, however, their intelligence spark through their choice of words, their answers to the questions. Their occupation might also provide some hints. The party that feels the facts are not much in its favor will do its best to prevent the critical minded to sit in jury box.

The same elimination process also works against minorities. It is much easier to recognize minorities. Though the Supreme Court banned peremptory challenges motivated by race, this ban does not have much practical effect, since motive is elusive and proving it is a daunting task, and attorneys can find many other reasons to strike anyone. Let’s assume that the case is about the death of a black drug dealer who was allegedly shot to death by 40 bullets from the guns of three white police officers. Let’s assume that out of 24 prospective jurors 4 are black. Plaintiff wants to prove that there was no reason to use deadly force and the incident is the product of the racist attitude of the police department. Since each party will strike 4 jurors as their right of peremptory challenge the current system allows the defense get what it wants: an all-white jury. On the other hand, if the system allowed selection, rather than elimination, then, the chance of all 4 black jurors being picked by Plaintiff would be no surprise. So, is there a way to for creation of a fairer and more competent jury?

The answer, I think, has at least four components: 

First, we should make it more difficult for judges to excuse highly competent jurors during voir dire. I have observed dozens of jury selection sessions and I found a common trend in excusing highly competent jurors, especially professionals from the jury duty based on frivolous reasons.

Second, knowing that in the Simpson’s case, more than 200 prospective jurors were eliminated, the pool of prospective jurors should be limited to not more than four or three times of the final number.

Third, we should modify the peremptory challenge rules by letting each party pick 3 and strike 3 out of the 18 prospective jurors who survived the voir dire. We might even consider letting each party pick half of the jury.

The fourth component might be explosive, but it is worth considering, at least theoretically. To expose jurors who do not have capacity or competency to understand and make judgments on the intricate factual disagreements of a particular case (such as, DNA evidence, or stock market), they should be subjected to a competency test. (I feel the ghost of Plato smiling). The questions of the test should be prepared by the court and parties. The scores may not be automatically used to dismiss any prospective jury, but they may provide valuable information for lawyers in their selection.