Who is this guy!?!?

“Who is this guy?”, an experienced trial attorney recently confided in me, is one of the essences of jury selection and the best we can hope to do. Prospective jurors are faced with a pretty intimidating (and boring) day. “What do you think of the presumption of innocence?” “Do you need to hear both sides of the story?” “Are you racist?” “Have you ever been the victim of a crime?”

They’re subjected to intensely personal questions and constantly asked “tell me more about that”. They’re expected to bare their souls to 3-5 complete strangers, all in a 45 minute span. No one even buys them dinner or drinks first.

Most people in a jury panel aren’t stupid these days, either. They know the drill; they’ve been around. Either they themselves or someone they know has been called to jury duty. They’ve seen enough TV shows and news reports to know the drill. Whether they admit it or not, they know what the correct answers are.

Which makes answering the question so much more difficult. No one wants to seem prejudiced or bigoted in public, in front of complete strangers. This is why, I believe, in a number of cases “rehabilitation” of jurors is a crock of shit. The cat’s out of the bag and now everyone’s trying desperately to shove it back in. Well, of course, if the judge told me that I couldn’t harbor any bias toward cops, I’d be able to follow the instructions. Very few people are going to admit that they don’t have the sense (or simply don’t care enough) to even pretend to try.

And maybe that’s all we can hope for. That they’ll try. They’ll try not to prejudge the defendant. They’ll try to put their biases aside. They’ll try not to let their first impression color their verdict. In return, we’ll try to pick as many honest triers as we can.

Because voir dire is the only shot we’ll get at figuring out who that guy is. Is he “fair and impartial”? Does he think he is? Does he understand that life isn’t black and white or just say that he understands? And, perhaps more importantly, why is he who he is?

I’m going to sidetrack here: I often stare at complete strangers on the road. Maybe there’s an older gentleman sitting in the car next to mine at a red light. I look at him and I wonder: how did he get here, at this light, sitting in the car next to me. What has he been through? This 6 foot mass of sinew and bone and nerve and blood is the embodiment of this man’s life. Maybe a book could be written about him, with black and white pictures in the beginning, a fresh faced young child playing with the water from sprinklers, then more text with faded yellow pictures, then some faded color pictures, maybe a wedding or two and children and grandchildren. All inevitably leading to the car next to mine.

Or the courtroom. And somewhere on that journey to that courtroom, something happened that caused him to answer a question a certain way. Is it possible to figure out what that event was and to understand it and its progeny? Is it possible to get a glimpse of the inner operations of another human’s mind in 40 minutes and then make a judgment call as to whether that person is one of the 6 or 12 who will decide the fate of another?

They say Connecticut is the slowest jurisdiction in terms of picking juries. I say maybe not slow enough.