Inside the Courts, Day2: Jurors du Jour

The lawyers I know seem like the busiest people in California-they live with a sense of urgency that's distinctly East Coast. "This motion has to be filed tonight! By midnight!" they say. "I've been working for 50 hours straight, on twelve cups of coffee, and I'm lovin it!" I always thought that courts would be jam packed with over-scheduled attorneys, all tapping their feet, late to the next appointment, and judges who constantly admonish meandering witnesses to "stop wasting time and get on with it!." Yet inside the Rene C. Davidson Courthouse, where I spent day two of my two-week embed in Alameda County's court system as part of an explanatory series funded through Spot.us, things are slow. Painfully, deliberately slow. Instead of making them frantic, those long school nights of poring through archaic law texts, followed by massive career-threatening exams, seem to have made attorneys incredibly patient. During yesterday's <a href="http://kalwnews.org/blogs/rinapalta/inside-courts-day1-deciding-death">bout in a death penalty hearing</a>, I became very curious about jurors. Who are these people who are chosen on behalf of all of us, to make some of society's toughest decisions? Every day, hundreds of U.S. citizens show up to report for jury duty at the Davidson Courthouse, but comparatively few (12 per trial, with 2 or 3 alternates) actually end up serving on a trial. With that question in mind, I spent most of the day in Judge Trina Thompson's courtroom, observing jury selection. And what I saw was comfortingly unhurried. The case, California v. Atualevao, will be a civil hearing to review the state's petition to designate Atoa Atualevao as a sexually violent predator. "Sexually Violent Predator" (SVP) is a designation put into law by the California legislature in 1996 and it's meant to apply to extremely dangerous sex offenders who are mentally ill and likely to reoffend and the state feels cannot be released into the general public after their prison term is complete. If a jury deems a person an SVP, they are transferred to a state mental hospital--it used to be Atascadero, but in 2005, the state completed a new facility in Coalinga explicitly to house the state's Sex Offender Committment Program--and they can be kept there for as long as the state sees fit, meaning, they could be kept there for the rest of their lives. Atualevao's case history was not immediately available, nor was either attorney in the case available to comment, but according to the state's Meghan's Law site, Atualevao is a registered sex offender, and from what came out in jury selection, he's a repeat offender with a violent history. As Judge Thompson started throwing out phrases like "rape" and "sexual penetration with a foreign object," the 50 or so potential jurors started to shift in their seats, and one thing became clear: this jury is going to have to deal with some extremely uncomfortable things. The court clerk called up 12 random names and they took seats in the jury box: a couple of MBAs, a few lawyers, a carpenter, a school teacher, a massage therapist, and a smattering of other professional types. The first task, Judge Thompson said, would be to relax and get comfortable, and to facilitate this, she'd start off the questioning herself. Judge Thompson joked with the jurors, asked them about their jobs, their experiences with conflct resolution and mediation--it was almost like a job interview, and jurors, most of whom probably grumbled for weeks about having to go in and serve jury duty, all of a sudden seemed eager to please, like they wanted to be picked. "Dynamics change when you're in the box," Elizabeth Semel, a professor at UC-Berkeley's law school and director of the school's Death Penalty Clinic, told me. Semel does not comment on cases where she doesn't know the specifics, but I called her up for insight into the general process of picking juries. "Judges are figures of authority, and jurors are inclined to try to please them," Semel said. That's why it's important for a judge to allow plenty of time for lawyers, who jurists tend to be more honest with, question potential jurors.  "Plus, no one wants to be considered unfair. They don't realize that being dismissed is not a judgment on their character, they just might have some biases specific to that case. That doesn't make them not fit to serve in a different case." She said there are two types of challenges a lawyer can make to get a juror dismissed: for cause, which means that the lawyer believes and can demonstrate that the juror has actual bias against the defendant, which would make them unable to be fair and impartial; and peremptory, where an attorney can dismiss a juror without giving a reason. A judge can agree to dismissing any number of jurors for cause, but an attorney is restricted to a specific number of peremptory challenges, depending on the type of case, and only so long as the attorney isn't getting rid of jurors to say, stack the jury with people of particular races or genders. Meanwhile, there are other requirements that come up in specific kinds of cases. In a case where the death penalty is a possibility, you can't have jurors that are fundamentally against the death penalty--each juror must say that they would be willing to vote for the death penalty in certain circumstances. From a defense attorney's standpoint, Semel said, "you end up with a jury that's not only able to impose the death penalty, but people who are for the death penalty tend to be more pro-prosecution" and presumably, more likely to convict in the first place. "In a society increasingly opposed to the death penalty, you're excluding from juries some 40 or 50 percent of people who would be otherwise qualified," she said. More than anything, Semel said, a defense lawyer's questioning is designed to find a jury that will listen. With sensationalistic portraits of crime and courts in the media and popular culture, jurors will take ideas with them into the courtroom, especially in emotional cases where violence or sex crimes might be at issue, "and that's not always consistent with what happens in a court room or what's consistent with the rule of law" she said. "Like the presumption of innocence." Stanford law professor Robert Weisberg added another perspective on jury selection. He said that an experienced lawyer who tries the same types of cases will over time, start to come up with profiles of ideal jurors. Prosecutors, who are particularly prone to specialize, are great at this, he said. Weisberg added that in high-stakes, well-funded cases like lawsuits against big businesses, a defense attorney might even hire a jury consultant to research demographics. But ultimately, "lawyers know that there are a certain number of people that they won't be able to get out of a jury," he said. "That's when they start using their questioning not to expose a bias in the juror, but to start to seduce the jurors into their way of thinking." Back in Judge Thompson's courtroom, the two MBAs, a teacher, and one lawyer had fallen off the jury by the end of the day, and the defense attorney hadn't even asked a question yet. A nurse, a judicial commissioner, a student, and girlscout leader had been called up to fill their slots and the questioning process started all over again: Do you you think that someone who's committed sex crimes can ever move on? It says here that you went to a psychologist when you were in high school--was that a positive experience? Do you think that people in prisons are treated badly? The questioning was punctuated with periodic private conferences with attorneys in the judge's back room and afterwards, a lag time while the court reporter dragged her equipment back and forth. Around the room, people were starting to slump in their seats. The newspapers they had been reading in the morning were done and they were bored with the books they'd brought. At 4:15pm, Judge Thompson looked up suddenly. "Oh, look at the time," she said, deciding that the jurors could leave for the day. "We've been moving so swiftly," Judge Thompson said. "It may not seem swift to you, but considering the delicacy of this case, it is." NOTE: Wednesday is furlough day in the court system, but I'll be back with more on Thursday. Please leave any questions or insights in the comments. 2009-11-18T21:05:55Z 261

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