Jury Selection Experience

[This is part one of a two part series on jury duty.  I intend both parts, taken together, to be one of the best available resources for potential jurors googling for information on what they are about to face.  There is, I have found, very little information available online.   In this part I describe my experience and the philosophical reflections it prompted which are of the kind, I take it, that any prospective juror should be aware of.  As a disclaimer, I am a member of the Alliance of the Libertarian Left and a certifiable anarcho-capitalist.  Nevertheless, I think the more philosophical reflections that follow are the sort of reflections most liberals, and many conservatives, will find compelling.  In the second part, still forthcoming, I will explain how to successfully engage in jury nullification without appearing to, in fact, be engaging in jury nullification.  Or less tendentiously, I will examine the debate over one's constitutional right to jury nullification, clarify the content of that debate, and explain precisely how to exercise your moral rights as a juror without violating, or appearing to violate, any of your legal rights.  This is important for potential jurors who wish to, for example, nullify in drug cases, but would rather not be held in contempt of court as a result.]

So I was called up for jury duty.  I actually returned that little piece of paper they send you in the mail.  You won't receive your summons via certified mail, so the courts can hardly force you to return it.  But I did.  Quite some time went by, and I was sure I had been passed over.  No so.  I finally received a letter (again, not via certified mail) stating that I had been selected, and to show up at the courthouse early in the morning some ten days off.

Ten days later, I went down to the courthouse and waited in Jury Room 47 for the selection process to begin. Judge Marnocha was presiding, and all outward appearances suggested him to be a fairly decent sort of guy.  The charge was battery.   The defendant victim was a young black woman around twenty five years of age.  Specifically, she was being charged with hitting someone with a bottle (I think).

Battery comes in several legal varieties.  This was a Class C Felony charge, punishable by 2 - 8 years in prison.  The presumptive sentence for such a charge is four years, but no less than two is possible.  She was undoubtedly (though speculatively) "offered" the chance to plead guilty to a Class D Felony.  The sentence for a Class D Felony will range from 6 months to 3 years.  This means that risking trial probably cost her around 1.5 years of her life (she was no doubt convicted).  The prosecutor's office (more justified speculation) no doubt threatened to fuxor her at trial as hard as they possibly could (if she refused the plea deal) by charging her with the Class C offense.  Their hope, of course, is that she would plead guilty out of fear so they could add an easy and inexpensive notch to their belts.

In order to prove the charge, the prosecuting attorney would have to establish (beyond a reasonable doubt), minimally, that the defendant:

knowingly or intentionally touched someone in a rude manner with a deadly weapon.  [link]

Most of the above information, of course, is information that your average juror wouldn't know.  And there were some average jurors at selection, let me tell you.  There were also some below average jurors, by which I mean disgusting prejudiced bigots.  More on this later.

Marnocha was concerned to make potential jurors feel immensely important and highly valued, just in case the fifteen minute propaganda video we watched beforehand hadn't left someone unconvinced of their specialness.  He also seemed eager to endear himself to potential jurors.  I was pleased to see that he cited Article 1, Section 19 of the Indiana Constitution which states, roughly, that jurors have the right to to judge both the facts and the law.  I confess that made me feel somewhat more comfortable, but not really all that more comfortable, since Marnocha said he would explain what this meant at some point during the trial.  It is quite likely, of course, that this explanation would have constituted a bogus reinterpretation of that section of code, which concerns jury nullification.  His wording was mildly interesting, as Article 1, Section 19 reads:

In all criminal cases whatever, the jury shall have the right to determine the law and the facts. [link]

Marnocha, note, did not say "determine the facts and the law". What he said was "judge the law and the facts".  (I report this with around 99% certainty.)  Those who have attempted to take away jury's rights to nullification have insisted (for utterly asinine reasons) that there is a distinction worth respecting between determining the law and disregarding the law.  In any case, it wouldn't be very hard to "determine away" the law in any particular case while claiming that one wasn't disregarding it.  One would just be giving it a non-standard interpretation.  And this probably wouldn't be necessary in any case, if one wanted to return a not guilty verdict, since one could always claim that the burden of proof had not been adequately met.  More on both of these points later.

Thirty-five potential jurors showed up.  The selection process was begun when we were seated, fourteen at a time, in the jury box.  The first wave took their seats, and the prosecutor questioned them.  Then the defense attorney got her turn. (The State always goes first.  Marnocha emphasized this point in order to stress the "fairness" of the process.  Of course, only a brainwashed juror thinks the process is, in fact, fair.)  Once finished, the respective attorneys conferred in whispers with the judge, retained some jurors and dismissed the remainder.  Those of us not in the first wave were able to listen to these questions, but the selected jurors from the first wave had to leave them room after they were chosen.  (This is to prevent their "contamination".)  I was part of the second wave, and after the second wave of fourteen, the jury had been assembled, so a few people didn't get the chance to do anything but watch and listen.

The assistant prosecuting attorney (Holly Curtis, perhaps?) was a moderately attractive blonde female around her mid to late thirties.  She thought fast on her feet, was efficient and articulate, and had obviously prepared for the case.  She was also skilled at pandering to the (potential) jury.  She sat with what I took to be her star witness, an almost shaven blond-haired hulk of a uniformed officer equipped for a dangerous Secret Service Op, complete with squiggly earpiece and a SWAT-like vest with multiple holsters.  Apparently he was prepared to dash out of the courtroom and serve somebody at a moment's notice.  That, or appear as official and intimidating as possible when he delivered his well-prepared testimony with the trained and practiced precision of an officer coached in testisfying persuasively.

The defense attorney, who I must assume was a "public defender", sat with her client.  She, like most defendants, was black.  She was also older, stupider, and less articulate than anybody else in the courtroom, potential jurors included.  I don't know how to express in English, without using terms that would make the most hardened criminal blush, the utter incompetency and ignorance this woman exhibited.  The miracle that constituted her graduation from law school and admittance to the bar almost makes me believe that an omnipotent being exists.  The least of her problems was that she didn't know the name of the individual her client was alleged to have battered.  (I will say one thing in her defense.  In 2006, "public defenders" in St. Joseph County each worked about 120 cases per year.)

The questioning process was fairly benign.  There were no odd questions asked, by which I mean questions about, for example, my musical tastes (which some websites suggest might be asked).  Each possible juror received a general question asking about their ability to fairly and impartially apply the law to the facts of the case.  In some cases, potential jurors stated that they had conflicts of interest (a friend had been battered, and they would probably be more likely to convict for no good reason as a result).  One obstinate piece of human refuse continued to insist that he was prejudiced and that this black girl, in virtue of being in court that day, must be guilty.  Thankfully, he was dismissed for being an ignorant bastard.  (This same jerk also stated that if the defendant didn't testify, he would definitely assume she was guilty.  More on this later.)

The prosecuting attorney asked me a couple of questions, towards the very end of selection, in the context of asking several people about what they would expect good testimonial evidence to look like.  It was pretty clear that this case was going to be based solely on testimony (and perhaps a picture of the harm the defendant had allegedly inflicted), she belabored the point that there is such a thing as testimonial evidence for quite some time (as opposed to "hard" evidence produced by forensic detectives on CSI).  Not all evidence, she said, had to be a physical object "like her pen".  Once she satisfied herself that she knew which potential jurors would not be satisfied without hard evidence (so could rule them out), she began to press people on what they would expect to see and hear from the witness box.

There was pretty much just one response from potential jurors to this line of questioning.  The vast majority answered that they wanted to see, I suppose, the kind of body language that allegedly telegraphs honesty.  One woman in particular prided herself on the highly sophisticated honesty detector she was in possession of.  (Dubious at best.)  While the prosecuting attorney loved this response, it was very important to her to add something else.  And she repeated her addition ad nauseum: "Wonderful!  Excellent response!  But wouldn't you also want what the witness is saying to make sense?  You can use your common sense, right, and if you use it, you'd expect them to say things that make sense?"  Quite frankly, I had no idea what this was supposed to mean, but she definitely intended "making sense" to amount to something beyond mere internal consistency of the testimony.  Perhaps what she had in mind was something like a well-told story making "more sense" than a poorly told one.  Or perhaps she meant the description of a situation related would count as "making sense" if it sounded like a plausible description of a situation that might obtain.

It was at this late point that she got to me.  I had almost expected being thoroughly ignored, but instead I was something like the tenth person she posed the question "What would you expect to see and hear from the witness box?" to.  So ten people had already answered "body language" and agreed to the "making sense" proviso, and at this point I wasn't really wanting to be on this jury (for conflicting reasons I won't get into here), so I thought I'd take the opportunity to contaminate as many potential jurors as possible.  I made two points.  First, I told her that I placed very little credence in notion that interpretation of body language was a good guide to credible testimony.  I supported this point by noting that the police officer sitting next to her was no doubt trained to give testimony and had little to lose, while the defendant would likely be terrified.  Second, I observed that everybody can have reasons for lying - the defendant and the officer included.  So I would require strong corroborating testimony and/or evidence of good moral character.  Specifically, I mentioned that I would require her to provide evidence that the police officer was not a liar.  She thanked me for my honesty, told me it was very important to be honest, noted that the State could not meet that burden and did not have to, and mentally wrote me off the jury.  I'd talked long enough at this point, so I was ready to shut up, but I wish I had interjected and said that of course the State could meet that burden, and that if they wouldn't, they clearly had no case.  Kthxbye.  Ah well.

It should now be pretty clear here that the prosecuting attorney knew what she was doing.  She succeeded, about as far as it is possible for a lawyer to succeed, at putting together a jury that would be very favorably inclined to kind of evidence she would be producing.  One more point in that speaks mildly in her favor.  When a juror said something that suggested to me that she would be unsympathetic to the prosecution or to the defense, the prosecuting attorney always asked whether the person would in fact find themselves incapable of setting aside their concerns for the purpose of judging the case on its merits (who knows what she did mentally).  I seemed to get the impression that she might have been the sort of person who would really base her jury decisions on the answer to this latter question.  But who knows.

The worst part of the process, however, was yet to come.  It was now the defense attorney's turn to quiz us.  And this miserable excuse for a public defender could barely get a coherent sentence out of her mouth.  She bumbled about in front of the jury box, stuttering and gesturing like a complete fool.  And I was hardly the only potential juror who thought this.  Conversation afterwards with others suggested that it was nearly universally recognized that this woman was beyond incompetent.

First, she seemed very confused as to the nature of the defense she would be offering.  She tried to tell some story about the police officer (the one sitting next to the prosecuting attorney) attempting to stand up and having his gun catch on the armrest, go off, and shoot her.  This story was so poorly told it, quite frankly, didn't make any sense.  She would stutter out phrases like, "So there was a shooting.  A shooting occurred.  The shooting took place.  I'm shot, and hurt.  He shot me.  So the battery occurred.  There was battery." And then she tried to ask people if, were something like that to happen, they would be likely to convict (even though battery had taken place).  It was a horrible attempt to see if potential jurors would be sympathetic to an accident defense, I guess, but most jurors had no idea what she was trying to get at, in part because she kept insisting, in the active voice, that the police officer had shot her (and going through weird motions trying to indicate how he might have accidentally drawn and fired at the same time) and that, by extension, her client had in fact committed battery (thus the "battery occurred" remarks).  Ma'am, if your client did in fact commit battery, as defined, then she's guilty.  Dur?

Later, her lines of attempted questioning suggested that there would be no accident defense, and in fact that, metaphorically speaking, no shooting had occurred (read: my client didn't really hit anybody with anything - accidentally or not - so let's ignore the fact that I just implied, as strongly as possible, that she had in fact battered the shit out of the alleged victim.)  This wasn't working for her, obviously.  And potential jurors were staring at her with puzzled looks, and occasionally even laughing at her.

Yet her most egregious sin was yet to come.  She then began to ask us whether or not we would convict if she proved that her client had not battered anyone.  (Here's where the previously hinted at accident defense which actually had her admitting her client had battered someone stopped making sense.)  And she proceed through the jury box asking juror after potential juror whether they would convict if she did in fact prove that no battery had occurred.  The responses she elicited were all pretty much along the following lines:

Well... I guess if you really proved that she didn't, then I guess I probably wouldn't convict.

She simply accepted all these responses!  At this point, I'd pretty much blown my chances of being on the jury, and I couldn't stomach any more of this.  Every potential juror already believed that the defendant had committed battery because of the "public defender's" moronic questions.  So I took it upon myself to again attempt "contamination" of the jury pool.  I informed the public defender that it was not her job to prove anything. Rather, it was the job of the prosecuting attorney to prove guilt.  And if the prosecuting attorney didn't do that, what the defense did was wholly irrelevant.  So of course I wouldn't convict if the prosecuting attorney didn't prove guilt, and furthermore, I could not understand why she was asking this question absolutely backwards.  I hope I succeeded in reversing some of the damage she'd already done, but a few minutes later it was all over, and I was one of the twenty odd people sent home.  And hopefully not the only one who was absolutely horrified at the travesty of justice we'd just witnessed.