Jury selection in a high stakes, very graphic criminal case

By Mark McBride

I recently had the occasion to pick a jury in a sexual assault / kidnapping case.  We started with 66 people, the goal was to arrive at 12 jurors and 3 alternates.

I must say, after jury selection, I came away from it feeling good about one thing, and feeling not so hot about two things.  What I felt good about was that, for the most part, most Los Angelenos are really good people who just want to do the right thing.  The DDA and I questioned them extensively.  Because this was a multiple life term case, the trial judge gave us virtually all the time we needed to really figure out their motivations, what they really thought, and so forth.  I did not detect dishonesty in them at all, in terms of making up baloney excuses to try to get off the jury.  Yes, there were a couple people who were transparently silly in their attempt to say that their roof would fall in, or that their children would be taken by aliens if they were empaneled, but, fortunately, we had a very smart and fast trial judge who saw right throught that, and she returned them to their seats.  As well, the DDA and I “kicked” all of them anyway.

I felt bad, though, about a couple things, and both of them go right to the fairness of the proceedings.  The first issue is that, during the discussion of some of the bedrock constitutional rights (the presumption of innocence, proof beyond a reasonable doubt, the burden of proof, and the right of a defendant not to testify at all), several, very normal-seeming people had significant issues with the last one — a defendant’s right not to be penalized by the jury if he or she says nothing at all during trial.  Yes, of course you can do your best to “kick” those jurors, but, of course, the rest of the potential jurors hear these unfortunate comments.  To rebut this, I look for leaders rather than followers.  I look for people who can put their foot down, and say, “No, this case is bogus.  I’m not convicting him or her.  Period.  I just can’t.”  As they say in criminal defense law in terms of hanging a jury, “it just takes one.”

The last thing I noticed which was very difficult in a case of this type were the many members of the panel who were reluctant about sitting on the jury because it brought up in their minds very difficult experiences from their past.  We had men and women, in their 40′s and 50′s, who were telling us in private conferences (out of earshot of the entire jury, but in the presence of the judge, DDA, court reporter, and myself) that simply hearing the charges brought to their minds things that they hadn’t even told their closest loved ones in their entire lives.

But that’s our job as trial lawyers.  That’s why we took the oath — to defend people, no matter the human cost, no matter the peril, no matter the human pain which could be caused by, say, lethal cross-examination, all the while working ethically and legally.

My takeaway from this experience confirmed the age-old principle that jury selection is one of the most important parts of a trial.  Many lawyers say (and I agree with them, on many levels) that jury selection will determine if the case can be won at all.

My next entry will be about whether juries should hear the potential sentence a defendant could receive if they vote for guilt.  Stay tuned . . .

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