Friday, April 17, 2015


Writing about Lane’s experience as a juror in one of my cases put me to thinking about jury selection in general. Oftentimes the juror who fits the stereotype for somebody you don’t want turns out to be your best juror. For example, I was trying a first degree murder case years ago when a prospective juror came into the box and said that he was opposed to the death penalty on religious grounds.  I asked him the standard questions about being able to vote guilty and recommend the death penalty despite his religious convictions, and he said that he could. I believed him. “In other words,” I asked, “what you’re telling us is that you can render unto Caesar?” He nodded his head and said “You got that right.” I left him on the jury, and the defendant wound up going to Death Row. I don’t recall if the recommendation was unanimous, so I don’t know if he voted for the death penalty, but he voted guilty.

Another time I had a lady voice opposition to the death penalty on religious grounds. She also answered the standard questions to my liking, and I believed her. She was distraught when the jury returned with their death recommendation, but she had done exactly what she said she could do—she had voted to recommend death.

Then there was the time I had a lady voice strong opposition to the death penalty, and she hung tough on the standard questions saying she just couldn’t recommend the death penalty. The defense attorney took over questioning and tried to wheedle her into saying that there were some circumstances where she could vote to recommend death. “Can’t you think of any circumstance at all where you would vote to recommend the death penalty?” he asked. She thought a moment and said, yes, there was one situation where she could recommend death. “And what’s that?” he asked. “If the defendant was a serial killer.” Oops. In this particular case the defendant was a serial killer. Defense counsel excused her.

I once had a prospective juror who actually participated in a death row ministry and was on a first-name basis with a lot of death row inmates. This would look like the last person that a prosecutor would want on the jury in a capital murder case, but he answered the standard questions properly, and I believed him. So did the defense attorney. He challenged the man off the jury.

Then there was the capital murder case where the Public Defender’s receptionist was called into the box. (The defendant had private counsel). She answered all the questions correctly, and I wanted to believe her but I was just a little nervous about keeping her on the jury. We took a recess and I made a beeline for an assistant public defender friend of mine. I asked him whether I should keep the lady on the jury, and he answered “I wouldn’t want her on one of my juries.” The conviction with which he said those words reassured me, I kept her on the jury, and I was not disappointed with the outcome of the case.

I’ll close out this post by reminiscing about a couple of non-capital case. We had just finished up a burglary case and the jury had retired when the defense attorney came over to me and told me that I had messed up on voir dire. I naturally wanted to know what he meant. “You kept my maid on the jury.” I said that she’d committed perjury then, because I asked if anyone knew him. “No,” he replied, “you forgot to ask that question.” I sweated bullets the whole time the jury was out, but when they came back they had a unanimous guilty verdict. I breathed a sigh of relief and resolved to quit “flying by the seat of my pants” in voir dire. After that I wrote out a questions checklist for every trial.

Then there was the time that we broke for lunch and the defendant walked out into the parking lot with one of the jurors, got into the car with him, and they drove to have lunch together. After lunch we put on a few more witnesses and the jury retired to deliberate on their verdict. In short order they came back with a unanimous verdict of guilty. I knew nothing about this at the time. It wasn’t until years later that the defense attorney told me about the incident, which he had witnessed.