Articles Posted in Jury Selection

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Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

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In a criminal case, a defendant is entitled to a unanimous verdict by all the jurors selected to hear his case.  Many times if only one juror votes in a defendant’s favor it’s a win for the defense.  The prosecutor  may choose not to go to trial again and dismiss the case or will plea bargain the case in a way that benefits the defendant.  Many times when a jury is hung with the count overwhelmingly in favor of one side or the other (usually against the defendant) the judge and the DA will try to identify the holdout juror, isolate that juror, and remove the juror in order to get a resolution of the case.

That’s what happened recently in the case of People v Armstrong, a 2016 from the 4th District Court of Appeal.  The defendant was facing the death penalty and was in the penalty phase of the trial.  In other words, he was guilty, but now the jury had to decide whether to vote for death or life in prison without parole.  One juror was refusing to vote for death and became the “hold out” blocking a verdict.  The judge removed the juror from the case in light of the frustration expressed by the other jurors.  However, there wasn’t any showing that the juror wasn’t participating in deliberations.  In fact, the juror was deliberating but just disagreed with the other jurors’ conclusions. Removing the juror was found to be error and caused the court to reverse the death sentence.

The role of the defense lawyer when a jury appears to reach an impasse is critical.  A mistrial declared because a jury can’t reach a unanimous verdict is almost always a victory for the defendant.  Any time the prosecution can’t get a conviction in trial the defendant wins.  The defense attorney has to object at the right time and must seek a mistrial and a “do over” whenever possible.  If the defense lawyer is “asleep at the wheel” and doesn’t raise the objection at all or doesn’t raise the right one the defendant suffers.  Getting the right lawyer who stays on top of the case can make all the difference.  It can even determine life and death.  Whether it’s a death penalty case, like Mr. Armstrong’s, or one with a much lesser penalty every case needs the trial lawyer to stay strong, alert, and make the right moves.

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Recently I visited the ongoing trial of a man accused of murder. The defendant was a Hispanic man in his twenties and was an admitted member of a Hispanic gang in Santa Ana. I walked into the courtroom, sat down and took a look at the jury. I almost laughed out loud. Here was this rough and tumble Hispanic gang member and the jury judging him was totally made up of white people. The jury members looked about as far removed from the life the defendant had lived as was possible.

The sixth amendment of the United States Constitution provides in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is commonly thought that a defendant is entitled to a “jury of his peers” but that is not what the Constitution guarantees. The Constitution only guarantees an impartial jury, not one that in reality has anything in common with the defendant other than they are all human.

However, the Supreme Court noted over a century ago in Strauder v. West Virginia, the jury should be drawn from a group “composed of the peers or equals [of the defendant]; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds.” This case involved an African American defendant and a jury in which other African Americans were excluded as a matter of law. This was held to be unconstitutional.

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What happens when just one of twelve refuses to vote for guilty? That juror becomes the Hold Out Juror. It takes twelve guilty votes to convict. A jury has twelve members. All twelve have to agree and vote for guilt before a guilty verdict can be returned.

The Hold Out Juror is the one who won’t go along with the other eleven jurors voting to convict. All kinds of pressure is applied. Shouting at the juror often occurs. Finger pointing in an angry manner is directed at the Hold Out Juror. When this abusive conduct doesn’t succeed in swaying the Hold Out Juror irrefutable logic is attempted. The other jurors usually appoint one of their brethren to explain how it just couldn’t have happened the way the Hold Out Juror sees the evidence. Of course, he will say, logic dictates that the Defendant’s story is full of holes. How could you believe his testimony when it flies in the face of what makes sense to all eleven of us? What is it about you that you don’t get it?

When logic fails to bring the Hold Out Juror into the unanimous fold, it becomes a case of, if we don’t reach a verdict then all of our time, the taxpayers’ money, and all of our effort has been wasted. You, the Hold Out Juror don’t want that do you?

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A defendant has a right to a jury trial in most misdemeanor trials and in all felony trials. Many times the case is won or lost in jury selection. A prosecutor told me the other day that he won the case in jury selection after the case was concluded. He realized his case was not rock solid and could have generated a lot of sympathy for the defendant. The important part of what he told me was that he thought about what kind of a juror he wanted before the case started. That means that he didn’t have a “one size fits all” formula of what kind of juror he wanted. Instead, he tailored his efforts to find jurors who fit the mind-set he wanted for that particular case..

Each side’s lawyer is thinking about what kind of juror will vote the way that lawyer is advocating. For example, in a prosecution of police officers the prosecutor might want people who had bad experiences with police officers in the past. The lawyer for the defendant (the police officer) may decide he wants people who have supported the police in the past and sympathize with the difficult and dangerous jobs the police have. For the trial lawyer, figuring out who will understand your case, sympathize with your cause, and vote for your side, is the essence of picking a “good” jury.

The lawyers who have experienced the process of picking a jury know that it is the most important part of the case. It’s not just exploring the attitudes about crime, law enforcement, family relationships to victims, people charged with crimes, or ability to follow the judge’s instructions; it’s about finding the juror who will listen to your side’s facts and argument and believe the “right” thing to do is vote for whatever side you, the lawyer, is advocating.

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“A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.” Code of Civil Procedure Section 231.5.

If a party (represented by his or her lawyer) uses a peremptory challenge in an effort to systematically exclude a member of a recognizable group, it is error under both the California State Constitution and the United States Constitution. But, as a trial lawyer, I thought for years that I just wanted fair, impartial, open minded jurors. I thought race didn’t matter if someone was “fair”. I was wrong. Race matters even more than the strength of the evidence or the law given to the jury by the judge.

To date, I have tried well over one hundred and seventy five jury trials. These trials have been for almost every conceivable charge, from assault and battery, to shop lifting, to sexual assault, to burglary to even health code violations, all the way to first degree murder with special circumstances. In each of these trials the jurors swore they would view the evidence impartially, without bias for or against the Defendant, and would apply the law equally as instructed by the judge.

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A Defendant has a right to have a jury of his peers decide his fate. Twelve people drawn randomly from the community who come to the courthouse and vote on the guilt or innocence of the accused. The Constitution requires the selection come from a cross-section of the population of the area served by the court.

Source lists are compiled from voter registration roles, driver’s license lists, utility company lists, telephone directories, and Department of Motor Vehicles’ identification card records. Generally speaking, a prospective juror has to be a citizen of the United States, live in California and be a resident of the jurisdiction in which the case is being tried. The juror cannot have a disability which would prevent him or her from judging the case, speak English well enough to understand the proceedings, not be convicted of a felony or of malfeasance in office, not be the subject of a conservatorship, and not be simultaneously serving on a grand jury.

The picking of a jury requires the attorney to decide who shall sit on the jury to decide his client’s fate. The prospective jurors must assure the court that they can decide the case based solely on the law and the evidence. The lawyer looks for body language signals as well as the actual answers to the questions posed to the prospective jurors. It isn’t always as obvious as a rolling of the eyes or a shrug of the shoulders. Many times it is the inflection of the voice or a shifting uncomfortably when answering the questions.

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How does a lawyer conduct jury selection? What is he looking for? Why did he kick me off the jury panel? How could he think I wouldn’t be fair? Jury selection is sometimes called an inexact science at best. At worst, it’s like throwing darts at a target blindfolded and hoping for the best.

As a seasoned criminal defense lawyer, I tend to think that jury selection is incredibly important. However, rather than an inexact science, I tend to think I am fighting against the notion that people will automatically side with the District Attorney just because my client scares the crap out of them.

When preparing for trial I think about what kind of a juror would be good to hear this kind of case. In a DUI for example, I want the following: licensed drivers, drivers who will have dinner a glass of wine and then drive themselves home, someone who doesn’t have a religious issue with alcohol, and someone with an open mind. The open mind is last because everyone will say he has an open mind (unless he is simply doing everything possible to get out of jury service).