A Jury of One’s Perps
It took twenty-one years (since the day I became a citizen), but here I am, in a jury pool for the first time, waiting for my name to be called to the jury box—and promptly bumped off. Writers, journalists, people who wear ties or type on a lap-top, take notes and leaf through national newspapers while waiting to be called: those aren’t the kind of people lawyers like on their juries. They want people who don’t read much and watch a lot of television, as long as it isn’t “Law & Order.” They want people they can manipulate, people who don’t think for themselves too much, people to whom critical thinking is either a burden or an unnecessary distraction from a life lived in quiet dilettantism.
Flagler County, where this is taking place, is a small place, a county of about 80,000 people whose claims to fame are its namesake, Henry Flagler, the railroad and Standard Oil mogul who “opened” Florida to megadevelopment at the turn of the last century, and the fact that until the earlier part of this decade Flagler County was a place missed by the rest of this state’s voracious appetite for digesting forest into concrete and asphalt. Missed no more. For a few years this decade Flagler was the fastest-growing county in the nation. Still, not much happens here besides the usual petty suburban prattles of human drama. The drinking. The wife-beating. The defrauding of old people or fraudulent arrests of young people, blacks especially. The shooting up. The once-in-a-while murder, like the fiftyish woman dragged out of her Daytona Beach home some time back, driven up here in her car and shot dead by her two kidnappers, who liked her car. They’ve just been put away in state prison. Surprisingly, no death penalty for them, although this is a state where the death penalty is on the table almost as often as it was in Puritan New England. My only previous experience in this courthouse was when I adopted my daughter and the judge let her sit in his chair, call the courtroom to order and strike the gavel (the room was empty: we did everything in his chambers.)
As it is, three pools of fourteen jurors have been randomly called (out of a batch of about fifty). I’ve been excluded from all three. So I missed a chance to decide the fate of a beefy, red-faced guy in his late forties or early fifties who dyes his hair black and looks every snort the stalker a woman’s charged him to be. I missed a chance to decide the fate of a diminutive, bald, middle-aged Casper look-alike defending himself against a DUI charge. And now, in this third round of voir dire, I’m missing the chance to decode the fate of a voluminous, gum-chewing woman who uses a pair of clear glasses as a head band for her shoulder-length brown hair and should have known better than to come to court in a sleeveless hood-shirt of sorts, or with a thick paper back called, in red letters on black, “Blow Out”: she’s charged with breaking the terms of an injunction for domestic violence. I would not want to be on the receiving end of her biceps, which have something of the configuration of arches at Arches National Park, in paler. The one port side shows a few blue marks from where I’m sitting. A slugger with experience? But she also has one of those French manicures, the kind that creates false half-moons of brash white past the fingerline. Would she want to risk those in a slugfest? I am, obviously, showing my every prejudice, although if Balzac were sitting here he’d have written nineteen pages by now on each of these individuals’ histories based almost exclusively on the shape and sags of their skulls.
And isn’t phrenology what these attorneys are doing? They’re asking seemingly innocuous questions (have any of you seen someone drunk? Have you been the victim of a crime? Do you give more or less weight to a police officer’s testimony? Do you drink?) in order to figure out not whether an individual can be a good juror, but whether that individual will hurt their case. Two completely different issues. The more a juror risks being like Henry Fonda in “12 Angry Men,” the less they want him. They’re looking for prejudice by being prejudiced—by assuming, by seeking to read minds, by parsing assumptions based on vague, entirely subjective judgments of jurors’ profiles (of their entire history!) based on a few minutes’ questions. How, in the end, does this result in a jury of any defendant’s peers, rather than a jury of amiable dunces?
It doesn’t. Jury selection is a proceeding designed specifically to diminish bias. It is in reality, by definition, a selection of bias. For a jury of one’s peers, the only true method to select one is to have no voire dire. Jurors’ prejudices are part of life. They’re part of what every jury pool must have, if it is to be an honest reflection of one’s peers.