Monday, October 4, 2010

"The Best Intentions - Part Two"

Somebody before my time said, “The road to hell is paved with good intentions.”

That saying pre-empts last Friday’s post, today’s and tomorrows. But what are you going to do? I wasn’t around back then. I want my turn.

On Friday, I spoke, less than knowledgably, about how the tax code’s making allowances for reasonable deductions led, ultimately, to a situation where a couple of zillionaire real estate mavens paid no income taxes whatsoever. I don’t know whether the tax code writers anticipated an outcome of this nature, but that’s the way it wound up.

I pay taxes. They don’t.

I will now proceed to the legal arena, where my ignorance is less than it is about the tax code, but only marginally. I’m sorry, that’s the best I can do. If you want actual knowledge, you will have to go somewhere else.

I’m a “broad strokes” guy. Though, hopefully, those strokes have value, if only as a conversation starter in your head.


The Jury System

You usher the first twelve people – originally, it was twelve men – into the jury box, they listen to the case, and…

“What if they can’t speak English?”

Okay. The first twelve people who can speak English. They listen to the evidence with an open mind, and…

“What if they know somebody connected to the case?”

Okay. The first twelve people who don’t know anyone connected to the case. They listen to the evidence, and, having sworn to be impartial, they…

“What if the defendant’s a Nazi, and the juror belongs to the tribe the Nazis tried to annihilate?”

Okay. The first twelve people the Nazis didn’t try to annihilate. They listen to the case, and…

“What if…”


You get the idea. In the name of fairness and impartiality, the court allows legitimate reasons for disqualifying a potential juror from service. Both the prosecution and the defense are involved in this culling process, employing an equal number of “peremptory challenges” to cleanse the jury of biasing prejudice. And people who can’t speak English.

At the conclusion of this process, hopefully, both sides will be reasonably satisfied with the composition of the jury, and as a consequence, will be accepting of its verdict.

Over time, the reasons for disqualifying potential jurors began to broaden. Issues such as the jury’s racial, ethnic and gender composition came into play. In the “Jim Crow” South, for example, suspicion began to arise as to whether a black defendant could get a fair shake from an all-white jury. To offset such imbalances, the side feeling disadvantaged is permitted to put their “peremptory challenges” to work, trying as best as they can to even things out.

Consider the difference here. In the first set of examples, as a result of their answers, on a questionnaire or questioning in court, potential jurors reveal themselves as being clearly unsuitable for service on that particular jury, and are consequently released.

With the racial, ethnic, and gender considerations, however, disqualification is based on the supposition of their unsuitability, based entirely on stereotypes concerning race, ethnicity and gender.

It feels kind of tricky. If this were a job-hiring situation, you would not be permitted to do that. That would be prejudice. Literally, “pre-judging” a person, based on characteristics you are legally forbidden to consider. But with jury selection, it’s okay.

“Get rid of as many of them as you can. There is no way they are going to be impartial.”

It is assumed.

In real life, Yowza! But in a legal proceedings, “That’s just fine.” The goal is fairness and impartiality. Assumed prejudice is a disqualifier.

Which brings us, inevitably, to

Jury Consultants

What are they doing there? They’re a refinement of the selection process. The attorney thinks,

“If I screw up on ‘jury selection’, this thing could be over before it starts. I have to be incredibly careful. I end up with the wrong jurors, it’s curtains.”

The attorney doesn’t want “curtains.” So suddenly, there’s a new player on the team. A certified expert on human behavior. To assist their attorney-employer with jury selection, they’re interpreting the implications of clothing choices, reading significance into hairstyles, monitoring eye moments, and assessing body language.

Juror Number Five: “Military haircut. Too ‘law and order’.”


Juror Number Twelve: “Refuses to make eye contact with the defendant.”

Good bye.

Juror Number Eight: “Seriously unattractive.” And the defense attorney’s a looker.

Out goes the meeskite. * (* A person of lower than median attractiveness.)

Notice how far we’ve come. We’re not talking “personal biography” anymore. And it’s no longer about assumptions based on identity-group affiliation. We’re now down to professionals evaluating the likely tendencies of specific individuals.

What we’re looking for is an edge. Miniscule advantages that will favorably tip the odds.

“Tip the odds”? What are we talking about? “Tipping the odds” isn’t about fairness and impartiality. “Tipping the odds” is about winning.

“Winning?” That was two posts ago – “I Blame Lombardi.” Are we really back to winning?

As the Marisa Tomei said in My Cousin Vinny

“We Ah!”

Somewhere along the line, gradually and organically, the jury selection process has evolved from “legitimate reasons for not automatically accepting the first twelve people” into a high tech free-for-all, each side is angling for “our best possible shot at victory.”

Quoting the Fred Willard character from A Mighty Wind,

“Wha hoppin’?”

The best intentions.

Is wha hoppin’.

I have no answer for this one.

But I know it’s a problem.

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