From The Other Side

The partner at my firm was irritated that I had jury duty and wasn’t trying to get out of it. I’d deferred the summons from December as I had a long-cause jury trial of my own on calendar then, so having indulged the court’s courtesy in rescheduling my service for a time better for me, I would seem an ingrate to not submit to service. Sure it would be inconvenient for me, but it’s inconvenient for everyone.

He suggested I show up in a suit. After all, that’s what I wear every day on a normal day. I didn’t do that. It would come out soon enough that I’m an attorney and that would create its own weird deference. A collared, long-sleeved shirt and khaki pants with casual shoes was going to be just fine. And as it turned out, I was better-dressed than about three-quarters of the jurors anyway. Which didn’t matter a bit, either.

I showed up at the time stated on the call-in, eight o’clock in the morning. There were maybe a dozen people in the jury room. So I meandered up to the third floor where I usually practice, just to double-check on the calendars — if there was something, I could at least call in the office and let them know so some other attorney could come and cover the appearance. Nothing. But a colleague was there waiting for her client to show up, so we talked about her experience on jury duty also. She hadn’t been picked and we both agreed my chances of being picked were slim indeed.

I sat in the chairs and noticed that they were much better upholstered than the gallery chairs in the courtrooms. That’s okay, I figured. Jurors ought to be comfortable.

A little bit after 8:30, which is when most things actually start in the court, a video started playing. It had a message from a judge thanking us for our service and some former jurors talking about what a great time they had on juries. There was information about what juries do, interspersed with reminders about how important the service is and how jurors had made lifelong friends while on jury duty and so on. It laid on the “This is really important” message a bit thick, in my opinion. Most of the other jurors in the assembly room, about forty of us, were reading their cell phones or daydreaming or otherwise not paying attention to the video.

At about 9:00, a clerk stepped in front of the assembly room and guided us through filling out the questionnaires on our summons forms, creating a badge from the punch-out card on the summons, and reading out loud a list of FAQ’s like “Will I get paid?” and “Where can I eat lunch?” and “What constitutes a hardship exempting me from service?” The clerk confirmed that business casual dress is preferred for jurors and I felt vindicated from my e-mail exchange the previous night.

Then a live judge came in the room. He and I are socially friends and after a few minutes of his spiel, he recognized me and said hello. Then he began what could have been called “Con Law Jeopardy.” He threw a bunch of questions out to the assembled jurors, most of which he and I had spoken of before in our interactions, but I kept my mouth shut to let others do most of the talking. I did answer his first question to get the ball rolling, and when they got stuck on “the 45 most important words in the Constitution” I did a quick guesstimate and correctly came up with the First Amendment.

Afterwards, a juror told me that she really liked his presentation, that it made her realize that what she was being asked to do as a juror was important to people, and to the country. So I guess it worked.

While all of this is going on, more are more jurors are filtering in. It’s now close to 10:00 and the room is starting to fill up. Where were these people at 8:00, when we were told to report for duty? My friend excuses himself to go back to his felony arraignment calendar, and the clerk then takes the microphone back and begins to call roll. By the last four digits of our juror identification numbers, not by name. This proves confusing. Hell, I’m confused by it, too. I don’t have a cool number like “2222” or “9876.” Several people mess up and don’t realize their numbers have been called, but eventually people get into it.

For about thirty seconds, the loudspeakers play soothing smooth jazz. Then the piped-in music goes away and a technician begins doing sound checks on the microphone. Meanwhile, we’re all just kind of sitting there making idle conversation with one another. I’m asked how it can be that the judge knew me on a first-name basis and so a few people sitting around me are now already aware that I’m a lawyer. They think that’s pretty cool, as it turns out. I ask about them; they are real estate salespeople and educators, for the most part, some retired — either I’m sitting in some sort of random cluster of well-educated and professional people, or there are a lot of well-educated and professional people in our venire.

Finally at 11:00 a.m., we are told that we’re being assigned to a department. The judge is one I’ve heard of but not practiced before. It will be a criminal case, so chances are I’ll have at best a nodding acquaintance with the lawyers. This is all for the good, I should think. A strong relationship with one or the other lawyers will result in my being bounced off the panel for cause, and a big part of the value I hope to get from serving on a jury is the experience of deliberating with other jurors.

I take a moment as we gather and are lined up outside the courtroom and assess the venire. There are 38 of us. 4 are African-American. 6 are Latino. 2 are Asian. The rest of us are different shades of Euro-white. This is contrary to my understanding of what the demographics of our area are, although later someone at my office tells me that I’m overestimating, and our area is only about 15% African-American so maybe 4 out of 38 is not that far out of proportion. But I’m still confident that Latinos are underrepresented, too. Men and women appear to be present in roughly equal numbers and the age spread looks pretty even too.

As I expected, I’ve seen and briefly interacted with the judge and the two attorneys before, but only in a casual sort of way. I know the district attorney has served as a scorer in past rounds of competition for the high school mock trial team I coach, and the defense attorney I’ve seen at the courthouse but have never really spoken to. The judge is also a face I know but in her description of her own background, it becomes clear that she’s been trained and experienced as a criminal law attorney before taking the bench, and has handled a criminal law court her entire career ever since. She is personable and humorous. She is white and in her fifties. She spends a longer amount of time explaining that the court has suffered grievous budget cuts than she spends explaining the process of how a jury trial works or what her daily courtroom schedule is like and why we shouldn’t expect to get started before 10:00 a.m. on any particular day.

I am given juror number 35 out of 38. I do the math — each side has 12 challenges, so that this means that I’m only looking at getting on to the jury if both sides use nearly all of their peremptory challenges, or if the judge is generous with her challenges for cause. And it becomes clear that this second contingency isn’t going to happen.

The judge conducts most of the voir dire herself, off of a questionnaire that either she or a clerk working for her have prepared. As individual jurors begin to express doubts and concerns about the process of evaluating evidence, the judge cross-examines them until they say the words she wants them to say — words to the effect that they understand the burden of proof in a criminal case, that they accept the presumption of innocence and are comfortable with it, that they will fairly and impartially consider all of the evidence without bias to either side.

One juror is astonishingly timid. She says that she cannot mentally handle the idea of judging another person. The judge says no, you’re not judging the defendant, you’re just judging the facts of this case. Did something happen, or not? No, the juror says, she can’t do that. She’s got no experience deciding who is telling the truth. Nonsense, says the judge. You do it all the time. Do you have kids? Yes. Do they ever tell you different things, like Johnny says Suzie hit him and Suzie says no, Johnny fell? No, I only have one child, says the juror, and he’s two years old so he isn’t even in school yet. Well, what do you do for a living, ma’am? I work in accounts receivable for a medical office. Well, what if your manager says that this patient owes money and the patient says no, I paid? Can’t you determine who is telling you what’s real and who’s mistaken? No, my manager makes those kinds of decisions, not me. And so it goes for what seems like fifteen minutes, with this woman insisting again and again that she never, ever has ever had to decide anything, ever, in her entire life.

I’m jumping out of my skin in the back of the courtroom. “Your Honor, this juror clearly doesn’t want to serve, let her GO already,” I’m saying to myself. But the judge continues cross-examining her, more and more aggressively, until eventually she gets the answers she wants and the record suggests that the juror can indeed be a fair and impartial decision-maker. The whole time the prosecutor and the defense attorney are sitting there, looking at the various jurors to try and figure out what magazines they are reading and gather whatever clues they can from their dress.

We break for lunch partway through the “biography” sections, as I’m finding that in terms of professions, it’s a pretty even mix of blue-collar, white-collar, and non-working people. Non-working in this context means retired, unemployed, or full-time students. There’s a lot of people who have very large families, and they are all made to describe what their adult children do for a living. This reveals some sad truths; several other veniremen and venirewomen have had fallings-out with their children and do not know what their children are doing because they are no longer in touch with them. Others are asked what their former or separated spouses do for a living, too. All of these people get a few moments to recite breakdowns within their families, personal facts that I’m sure they’d just as soon keep private and just as soon not have to dwell on in a room full of strangers.

The one woman whose son is on LAPD SWAT and whose extended family consists of at least a half dozen police officers gets a judicial cross-examination too, until such time as she gives the right answers (I can vote for the defendant if the evidence supports her side, I understand what reasonable doubt is, I won’t give the police officer witnesses any special credibility or deference in my mind).

Jurors describe having had bad experiences at the hands of police — some report being falsely accused of murder, some report being physically abused by cops — are cross-examined by the judge until they too make statements for the record that they can separate their own experiences from the evidence to be brought in the court. The judge is working very, very hard to create a record indicating that of 38 potential jurors, all 38 are qualified and unbiased. And to get it all done before 3:00 p.m.

Eventually, it’s my turn. I indicate that I am an attorney, describe what my wife does for a living. I volunteer rather than waiting to be asked what kind of law I practice and the judge and I share some banter about the likely effects of the next round of budget cuts coming down the pipe will be on my practice. The judge then says, “Well, if you’re on the panel, you know you’re going to be the foreperson. That’s just going to happen, you’re a lawyer, you’re the expert here, the other jurors are going to look to you for guidance. We all know that. So when one of them asks, hey, why did the judge sustain that objection, or why did the attorney do this thing during the trial, what are you going to tell them?” I’ve been well-trained by observation at this point and I know the correct answer anyway: I’m going to say that deciding what evidence comes in or doesn’t is your job, not mine, Your Honor. I’m one juror out of twelve trying to decide the facts. Amazingly, I’m exactly right!

The courtroom staff, parties, and attorneys are introduced so that we can determine if anyone in the venire knows any of them. The defendant is Latina and seems to be about 30 years old. A rough 30 years too, by the looks of her. I know the court clerk; she was previously assigned to the eviction department where I often work, and I had a good working relationship with this clerk during the approximately one year she was in that court. Of course, this will not affect my consideration of the evidence in any way and I can be fair and impartial.

I wonder if this is wise on the part of the judge. It’s clear that there are jurors present who do not want to serve. It’s clear that there are jurors present who have biases, biases no reasonable person could comfortably set aside. A woman who has been beat up by a cop and accused of murder is not going to look at a cop on the witness stand and give the benefit of the doubt. A woman whose son, daughter-in-law, cousin, and extended family members are all police officers is not going to be as skeptical when a cop is testifying. But the judge has moved ahead of the attorneys and whitewashed every bias and every preference out of thirty-eight people such that they are all giving uniform, acceptable, and desired answers.

After a voir dire done from the bench for this purpose which lasted for a total of about three hours, each attorney is given fifteen minutes to do voir dire on their own.

The defense attorney clearly has absolutely nothing he wants to look for in the answers to any questions. He’s tentative in his demeanor. He asks more questions about the presumption of innocence. He asks more questions about the burden of proof and whether the jury can apply the standard of beyond a reasonable doubt. And then he asks one question that goes even a tiny little bit beyond the judicial voir dire: will you let the fact that there are two charges against my client influence you towards thinking that she must have done something wrong? Of course, no one will.

His body language indicates that he’s not really paying a lot of attention to the jurors like me in the gallery, only the twenty or so in the box. This seems a mistake; there are several older jurors sitting around me in the gallery and I know that when you are dealing with people “of a certain age,” if you turn your back on them they stop listening to you and instead feel disrespected. After his questioning is done, I have little idea at all what kind of evidence he expects to be putting before the jury.

The district attorney is visibly more confident and projects her voice much better. She is clearly more experienced than the defense attorney. She asks two questions of the venire, although she does it in different ways with different individuals. First, she wants to know if they will hold her to the standard of certainty that they see on TV shows like CSI and Law & Order, where there is a lot of forensic evidence and DNA and blood samples, or if they can evaluate testimony like witness statements, giving testimony due and proper credit. She goes out of her way to assure people that it’s perfectly okay for them to say that yes, they expect to see that sort of evidence before they convict and that voir dire is the time for them to speak up and say what they think. Then, she asks whether a juror would discount the testimony of someone who’d been drinking. It only takes a little bit of cross-examining a prospective juror for them to volunteer the answer she wants: it would depend on how much they’d been drinking; one or two drinks, no problem, but a whole lot of drinks then yeah, that might be an issue. Satisfied that she’d flagged out two big issues to address, she sat down.

After that came the peremptory challenges. And they went much faster than I’ve done them in civil cases. The People thank and excuse juror number six, Your Honor. The defense thanks and excuses juror number two, Your Honor. Boom, boom, boom.

The first juror to go was Little Miss Indecisive, who I described earlier. The district attorney figured out she didn’t want to serve and that having someone like that on the panel was not going to work out well. So again, I thought the D.A. was doing things right, meaning in approximately the way I would hope to do them myself were I in her shoes.

Less than ten minutes passed before seventeen jurors had been thanked and excused and walked out of the courtroom. One looked a little bit upset, as though he had wanted to serve and was disappointed he could not. But most looked happy to go. And after that seventeenth challenge, both the prosecution and the defense said that they were happy to accept the jury as constituted. The attorneys conferred with the judge for a minute and they picked two alternates, including the guy sitting next to me, who seemed more than slightly dismayed at the prospect of serving as an alternate juror, but at that point he didn’t have much choice in the matter.

The demographics of the selections seemed odd to me. Of the four African-Americans in the venire, the defense attorney, who was also African-American, excused two, and the prosecutor excused one. The final panel had ten white people and two Latinos, and was made up of seven women and five men. Both alternates were younger white men. The part I can’t quite pin down is why it is that both sides both suddenly decided that yes, these twelve I can live with, and that they did so at the same time. But I wasn’t working the post-it notes, and they were.

So the remaining seven of us were thanked and excused, and we walked back to the jury assembly room and got stamped slips of paper to show our bosses and went on our way. It was 4:30 in the afternoon before I was able to leave the court, having got the result I expect I would get all along — not selected to serve and a day behind in my work at the office. I didn’t get the experience I had hoped for.

But I had learned a valuable lesson about voir dire from seeing the contrast between the prosecutor and the defense attorney’s approaches. I have at least some idea of what her case was going to look like but none at all about the defense.

And I have something to muse on as I reflect on the judge’s extraordinary efforts to bully (in a pleasant way) every witness into saying things that sometimes pretty clearly weren’t true, so as to enhance their eligibility to serve on the jury. Is this really the best way to find the most unbiased possible finders of fact? I’m pretty skeptical of that right now.