By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:
Cross posted from Frederick Leatherman Law Blog
Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.
To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.
This is what she said:
The sexual abuse consisted of digital penetration of her vagina and fondling.
She ended it when she was 16 and later told her parents. Her parents told his parents.
She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.
Our client denies that he ever sexually molested her or anyone else.
We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.
We know that many, possibly all of the people in the jury pool, have heard or read her story.
What do we do?
First, let’s back up. We would have spent the past week developing a juror questionnaire. A section of that questionnaire covered pretrial publicity.
We would have prepared a short summary of the case telling the prospective jurors the names of the defendant who is White/Hispanic and the alleged victim who is Black, the date and location of the incident, a brief statement of what allegedly happened, and a statement that the defendant has admitted shooting the victim to death, but claims he did so in self-defense when the victim attacked and attempted to beat him to death. The victim was unarmed and the incident was extensively reported by the media and discussed over the internet.
Each prospective juror was then asked on the form, if they recalled anything about the incident, and if so, to write down everything they could recall about it.
Then they were asked if they had formed an opinion about the case and, if so, what it was (i.e., guilty or not guilty), whether they had ever expressed it to anyone, and how often they had expressed it.
They also were asked if they had ever argued with anyone about the case.
After the jurors reported to court, they were instructed to fill out the form. They identified themselves by juror number, rather than name, and told the forms would be destroyed after the case.
They also were instructed that they had to be truthful and sign and declare under penalty of perjury that the information they provided was true and correct to the best of their knowledge and belief.
The forms were collected and copied. The prosecution, defense, and the judge each have a set.
We have reviewed our set. We set aside all of the jurors who have no recollection of the case and sorted those who do into two categories: those with opinions and those without.
Now, we aside everyone without an opinion and sort those who do have opinions into two categories: those who believe the defendant is not guilty and those who believe he is guilty.
Since we are representing the defendant, our category of best jurors will include everyone who said he was not guilty.
We are not interested in this group at this time, so we also set them aside
Question: Why do we do that?
Answer: Because jury selection is a process of choosing the prospective jurors we want to eliminate. The final product will be whomever is left after each side eliminates the prospective jurors they do not want. There is a limit to how many prospective jurors we can eliminate, however, so we have to choose carefully.
Therefore, we are going to focus on the category of prospective jurors who believe our client is guilty and rank them according to how strong their opinions are and how much they know about the case.
Those with the strongest opinions based on the most knowledge of the case will be our targeted set of prospective jurors to eliminate. Some portion of these prospective jurors will have commented to the effect that the defendant is a child molester.
We will want the judge to excuse these people.
Individual voir dire: We will question the prospective jurors individually out of the presence of the others to avoid infecting the others with prejudicial information.
Challenges for Cause: We have an unlimited number of challenges for cause. To successfully challenge a prospective juror for cause (i.e., persuade the judge to excuse the prospective juror), we have to show that the prospective juror cannot be fair and impartial.
Establishing that the prospective juror believes our client is guilty is only half the battle. The critical question is whether we can persuade the prospective juror to admit that his or her opinion is so strong that he or she cannot honestly presume our client is innocent.
Peremptory Challenges: We have a limited number of peremptory challenges. When selecting a 12 person jury, each side gets 6 peremptory challenges. Unlike a challenge for cause when we have to convince the judge that the prospective juror cannot be fair and impartial, with only one exception we do not have to provide any reason to support or justify a peremptory challenge. This is why there is a limitation on the number of peremptory challenges.
Exception to the Rule: Neither side can use peremptory challenges to systematically exclude prospective jurors based on race, gender, or religion.
Basis for this exception: To stop the routine prosecution practice in the South of using its peremptory challenges to disqualify all Black prospective jurors in cases where the defendant was Black. Since then, the prohibition has been extended to apply equally to the defense and to cover gender and religion.
What this exception means for us: We cannot use our 6 peremptory challenges to systematically exclude Blacks from the jury.
This does not mean we cannot exclude some Black people, but we have to have a reason unrelated to race and we had better be consistent in excluding White prospective jurors for the same reason.
If we do not, our peremptory challenges will be denied and we will likely be held in contempt of court.
How do we get a prospective juror to admit he or she cannot be fair or impartial?
Answer: We start by asking the prospective juror to explain why he or she believes they can disregard their opinion and presume our client is innocent.
If the prospective juror mentioned the child molester factor, get it out on the table and ask them how they could presume our client innocent, despite believing he is a child molester.
When they finish their explanation, ask them if they had to vote now, without having heard any evidence, what their verdict would be.
The typical response will be, “I can’t do that.”
Why not? you respond.
“Because I don’t have any evidence upon which to base a verdict.”
“Would you want the prosecution to introduce evidence to prove its case?
“Yes, of course.”
“How about the defense. Would you want the defense to introduce evidence to prove self-defense?”
Would you want the defense to introduce evidence to prove he is not a child molester?”
“What happens if the defense doesn’t change your opinion?”
“I would vote guilty.”
At this point, you thank the prospective juror and say, “Your Honor, I respectfully challenge the prospective juror for cause because he has demonstrated that he cannot presume my client innocent and he would expect us to change his opinion that our client is guilty.”
The prosecution would be permitted to attempt to rehabilitate the prospective juror.
If successful, the judge would deny the challenge for cause and we would have to use one of our precious peremptory challenges to excuse him.
One down, five to go.
If unsuccessful, the judge would excuse the juror for cause and we would still have our 6 peremptory challenges.
In this manner, we would proceed through the panel of jurors until we have passed 24 jurors for cause, plus 3 for 1 alternate. (Total: 27)
If both sides exercise all of their peremptory challenges, there will be 17 left.
If both sides exercise their 1 peremptory challenge each against a potential alternate juror, there will be 12 jurors left, plus one alternate.
Key points to remember:
1. Sort the prospective jurors according to the order in which you want to get rid of them.
2. Keep asking open ended why-type questions and follow-up on the answers.
3. Every time you fail to get a potential juror excused for cause, you will have to use a peremptory challenge to get rid of them.
4, You have only 6 peremptory challenges.