Op Ed in the San Francisco Chronicle

Op Ed in the San Francisco Chronicle

3-31-05

OPEN FORUM

Prejudging jurors
In real world, stereotypes are factored in

by

Jay B. Gaskill

The Bay Area media are riveted on the death-penalty appeal of convicted murderer Fred Freeman, whose hearing has become a venue for charges, countercharges, character assassination and gossip. The issue is whether former Alameda County prosecutor Jack Quatman committed misconduct. Quatman, who now practices law in Montana, claimed that he illegally kept several potential jurors off the Freeman jury because of their Jewish-sounding surnames, adding that he did so on the advice of the trial judge, the late Stanley Golde (a practicing Jew). This was a sanctioned practice for jury selection in the Alameda County District Attorney’s Office, Quatman maintained.

Quatman must have known that his charges would ignite a firestorm. We’ve been reminded that he left the D.A.’s office embittered because of differences with his boss, Alameda County District Attorney Tom Orloff. I’ll not enter that hornet’s nest, except to observe that the credibility of Orloff, who has testified against Quatman on various points, is excellent.

The public, however, needs some perspective. Here is a sketch of the legal landscape:

The law forbids the use of “invidious” criteria like race and religion for almost all official decisions, which means that both are off limits in jury selection. Or are they? Enter the trial lawyers. California allows each side in a criminal case a number of peremptory challenges, which used to mean that “Mr. Smith, you are excused” was never explained. Under law, a pattern of peremptory challenges suggesting use of an invidious criterion is usually objected to.

To meet the objection, the lawyer must come up with a set of noninvidious reasons. Trial lawyers quickly learn that certain human stereotypes are routinely used in jury selection because, bluntly put, they capture strong statistical tendencies. For example, some faiths tend to oppose the death penalty but don’t condemn drinking, while others tend to oppose drinking but not capital punishment. Yes these are only generalizations; that’s why they are stereotypes. But if you’re trying a death-penalty case or a drunk-driving case, you need to know these things. Also, some prospective jurors “lie,” in that they deny or conceal facts about themselves that make them look bad, things like “being unfair” or “not keeping an open mind.”

Even with a jury-selection expert at your side (few law offices can afford them), picking a good jury for your trial is a crapshoot. Not every prospective juror can be given the third degree, and not every answer can be trusted. So trial lawyers go with their educated intuitions. Do stereotypes get factored in? You bet. Stereotypes like the one mentioned in the Freeman imbroglio — that a prospective juror’s Jewish background points to death- penalty opposition — would have been consonant with the late Judge Golde’s experience as a former trial lawyer.

But the real-world meaning of whatever Golde may or may not have told Quatman about this (because both knew the law) would have been to “pay attention.” It would not have prompted a knee-jerk rejection of these potential jurors because they might be Jewish. The reports mention other legitimate factors about these jurors in the record sufficient to justify Quatman’s peremptory challenges. This would normally put the issue to rest.

Death-penalty cases present unusual problems in jury selection, however. The process can be improved, to a point. For example, after the challenges for cause have been ruled on, both sides would be required to submit an entire list of their proposed peremptory challenges to the trial judge. Each side could submit up to four more than the maximum number allowed. The judge would then review both lists, call the attorneys into chambers for mutual disclosure, on-the-record discussions and objections. The judge would then disqualify an equal number for each side (discarding up to four). This, too, is an imperfect solution, but would give the trial court much more control over the “invidious” challenge problem and would cut down on late-breaking allegations such as those in the Freeman case.

Jay B. Gaskill is an attorney and a former Alameda County public defender (1989-99).

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