While we await for the action to begin with the opening statement coming next week we have time to consider some other things as the lawyer’s go through picking the jurors. There’s a whole industry out there that advises lawyers on how to do this. In America, there seems to rise up an industry on almost everything imaginable. No one seems to be able to make a decision without a panel of experts behind them.
In this case I tend to doubt any of the members of the “jury pick advisory industry” are employed. I say this because there are seasoned lawyers on both side of the case and their experience in picking jurors is as sound as anyone who would tend to give them advise. Having been there myself, there are some guidelines you can follow but trying to get into any person’s head is extremely difficult. Here’s a small example
I grew up in an Irish Catholic neighborhood. Most of my friends came from that crew although the Italians, Lithuanians, Polish and other Eastern Europeans were sprinkled in among us. One day many years later after I had left the neighborhood when I was a defense lawyer I happened to have a case in Suffolk Superior court. At that time jurors were chosen to sit for a month at a time. I happened to run into two guys I had hung around with as a teenager. Both were good guys who I really liked. One happened to have been one of the toughest guys in the neighborhood, the other probably the most easy-going.
I’ll call them Bill and Phil. There was nothing objectively different about either man. An outsider could study them closely and figure out what one believed the other would believe. But they were as different as night and day if you knew them well. When I ran into Bill we discussed old times and old friends. He opined during our conversation that he liked being a juror because he could just look at a guy and know he was guilty. Later I ran into Phil and had the same initial discussion about the old days. Phil opined that he liked being a jury because he knew anyone who was arrested by the Boston cops was not guilty. He thought they always charged the wrong people.
You’d never know this as a prosecutor or defense lawyer but whatever one you picked would have a significant influence on the outcome of the case. Later that month I heard that another guy from our neighborhood who was younger and who I didn’t know that well was on trial for a murder in a courtroom on the eight floor of the new courthouse. I was in the first session on the seventh floor waiting for a hearing on a motion. When the judge got involved in another case I went up one flight to take a peek at the murder trial. The court room was packed but I knew the court officer, told him I wanted to stay for only ten minutes, so he squeezed me in to a seat opposite the jury usually reserved for court officials.
I sat down looked at defendant who seemed relaxed. I then looked across at the jurors. There in the middle of the first row sat Phil big as life. He caught me looking at him, smiled at me, and winked. I scurried out of the courtroom not wanting to get involved. I really didn’t know for sure if Phil knew the defendant or if he did whether it would affect his opinion. I figured maybe he could do his job as a juror so I went back to my own case. Later I heard the jury ended up being hung with an 11 for guilty one for acquittal vote. Now I can’t say it was Phil who was the one vote for acquittal since jury deliberations are secret. So you can infer what you want.
The bottom line is that with all the experts in the world the most important thing for a trial lawyer is his gut instinct based on his experience in analyzing jurors. Even then you don’t know what’s in a juror’s heart.