Op Ed in the San Francisco Chronicle
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
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.
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