Short Cuts

Deborah Friedell

For months after I was summoned to appear for jury duty in North London, I couldn’t stop asking people – in England, in America – if they’d ever been called up too. The question worked less well here, where 65 per cent of people will never be jurors, but nearly all the Americans I talked to seemed to have done it – or to have got out of it by saying ‘I don’t trust the police,’ or being opposed to the death penalty, or having been the victim of a violent crime, or being a lawyer. Years ago, one of my aunts turned up for jury duty at the federal courthouse in Manhattan and was given a questionnaire: did she know anyone called ‘Big Paul’ or ‘Tony Ducks’ or ‘Fat Ralphie’? Had she ever seen The Godfather, or read the book? She remembers being asked ‘twenty different ways if I was Italian’. Also: would looking at photographs of mutilated corpses so upset her that she’d have trouble following the court’s instructions?

My aunt was dismissed with the thanks of the court: she’s not sure why. In the US, judges interview potential jurors, and are supposed to dismiss anyone who they think won’t be fair. And lawyers on both sides are allowed to get rid of jurors on almost any grounds by making a ‘peremptory challenge’. There’s an art to this, it’s said – to being able to tell, in a moment, if someone is likely to be good for you, or better for the other side. Years ago, before a drug trafficking trial, a friend was asked if she believed that marijuana should be legalised – she did indeed. But the prosecutor didn’t dismiss her, and so for weeks she heard the case of a man accused of bringing cocaine from New Jersey to California; my friend thought it was obvious that the defendant was guilty, but the jury couldn’t agree among themselves, and there was a mistrial. As soon as it was over, the prosecutor talked with my friend (this is allowed in the US) to try to find out where he’d gone wrong. He said that his strategy had been to hold on to smart jurors because his case was strong but complicated, and the defence attorney was known to be particularly talented at misdirection. But maybe he should have been paying more attention to what they thought about the war on drugs? Or something else?

For major trials, lawyers sometimes rely on professional jury consultants – they’re often psychologists, and the most expensive of them run mock trials with focus groups. For lawyers on a budget, there are jury selection gurus on YouTube. Jack McMahon is one of them. He was an assistant district attorney in Philadelphia thirty years ago, when I was growing up there, and now is a criminal defence lawyer. In a video he made to help new prosecutors, he says that ‘preparation, evidence, witnesses’ mean nothing if you fail at jury selection: ‘Probably the single most important thing you’re going to learn to do is to pick good juries.’ He says that the best juror for the prosecution is a conservative, stable man who’s been in the same job, or married to the same woman, for a long time. He should be dressed up for court: that shows respect for the law. If he’s carrying a book, it should be a thriller – preferably Tom Clancy. You want ‘realistic, plain simple ordinary people’, ‘not the town idiot’, but not smart: ‘smart people will analyse the hell out of your case’; ‘they hold you up to a higher standard … they take those words “reasonable doubt” and actually try to think about it.’ You don’t want social workers: they’re too intelligent and too sensitive. You should also use peremptory challenges on idealistic young teachers, though an older ‘white teacher, teaching at a black school, who’s sick of these guys – that may be one whom you’d accept’. He says that ‘young black women are very bad – there’s an antagonism’, though older black men, particularly if they were raised in the South, ‘where there’s respect for law and order’, often do just fine. You should always get rid of older black women, particularly if the defendant is a young black man, because ‘there’s a maternal instinct’ that kicks in. He says that although, officially, ‘the object … is to get a competent, fair and impartial jury, well, that’s ridiculous. You’re not trying to do that. You’re trying to get the jury most likely to do whatever you want them to do.’ After all, the other side is trying to do the same thing.

In 1986, the Supreme Court ruled that it was unconstitutional to exclude jurors solely because of their race, so McMahon says that prosecutors should be ready to offer non-race-based reasons for excluding black jurors. ‘The woman had a kid the same age as the defendant’ or ‘she’s unemployed’ both work fine, but you can also just say that you didn’t like the way someone was dressed. It’s almost impossible for defence counsel to prove that a peremptory challenge was motivated by race, and so all-white juries persist. Who can say what’s in a prosecutor’s heart?

In London, the 12 of us who entered the jury box were asked only one question: did we recognise anyone in the courtroom? No? Let’s go! Last week, a month after we delivered our verdicts, I met with a barrister. I wanted to know if my experience was out of the ordinary – are jurors usually asked more questions? And could I write about the trial? The answers were: no and no. In America jurors are free to get book deals as soon as they deliver their verdicts (see: The Private Diary of an O.J. Juror: Behind the Scenes of the Trial of the Century; Hung Jury: The Diary of a Menendez Juror; Madam Foreman: A Rush to Judgment?), but in this country jurors who ‘disclose information about statements made, opinions expressed, arguments advanced or votes cast in the course of their deliberations’, to anyone, face imprisonment.

The two men in the dock, like 40 per cent of London, weren’t white. We the jury were very white, as was the judge, the crown prosecutor, the police officer who gave evidence, and the alleged victims. Unlike in the US, where counties aim to get every eligible adult into the jury pool by scouring tax records and driver registrations, juries here are determined solely by the electoral register: 28 per cent of eligible BME citizens aren’t on it, compared to 7 per cent of white people; among people of African descent, it’s closer to half. (The campaign Operation Black Vote has been working to change this.) Did race affect our judgment? I can’t tell you. It’s a matter of public record that our verdict wasn’t unanimous.