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    Wednesday, February 15, 2012

    A jury free from bias; on which planet can you find one

    The courtroom is often a place where reality and the ideal world collide. I have personally prosecuted and defended many cases in front of a jury and in every single one jurors are told by one side or the other, or by the judge, that they should use their common sense and everyday decision making abilities to decide what the facts of the case are. But despite this seemingly simple instruction, jurors are bombarded by rules and asked to make promises in an environment where their verdict has consequences far beyond what their "everyday" decisions typically bring. One of the promises potential jurors are asked to make is that they set aside their own personal prejudice or bias and decide the case based solely on the evidence presented. Inevitably each potential juror says "yes". On one occasion when I was prosecuting a murder case I pressed a little harder on the issue and outright asked a potential juror whether or not the fact that the accused was black would have any bearing whatsoever on their ability to be fair and impartial. Surprisingly, the juror responded that it might. As much as I disagree with whatever reason he could have had to take that position, I expressed my appreciation for his candidness and moved on to other questions.
    I came across an interesting article in the Wall Street Journal about North Carolina's Racial Justice Act entitled Death-Penalty Racial Law is Tested that describes a challenge to a 1994 murder conviction based on whether or not race played a significant role in the death sentence. New York has effectively banned the death penalty, however the idea behind the challenge poses an interesting question relevant to any criminal conviction and sentence after trial; does race play a role in the decision making process of jurors when deciding to convict a defendant? It is not common that a judge will carefully examine a jury verdict (pursuant to a statute or otherwise. Most jury verdicts are left undisturbed. Out of all the potential jurors I have interviewed, hundreds if not a thousand of them, only one has admitted to racial bias or prejudice. Compare this to my everyday conversations outside of the courtroom where multiple people have admitted they have some racial bias, or have expressed opinions regarding certain racial group's seeming propensity to commit crime. I find it difficult to believe that in the courtroom setting, based on a simple instruction by the judge, that most people can set aside their prejudices, like flicking a switch on and off, for purposes of deciding the fate of a stranger accused of committing a crime.
    I do not know that there is a solution to the problem, or at least a quick fix. I believe that things have gotten better over time and that for the most part, many if not most jurors I have dealt with want to do what is right. I have had the privilege of working with prosecutors, police and fellow defense attorneys who want to make sure things are done right (a credit to the community we live in). The fact remains, however, that prejudice and bias will remain a concern with juror decision making. Many potential jurors would never admit in open court to a group of strangers that they harbor prejudice or bias to a certain racial group. And so their answer is a simple and easy "yes" to the question posed. A quick yes is all it normally takes to turn the question and attention regarding an uncomfortable topic away and on to something else. Many judge's allow a very limited time to question potential jurors in criminal cases. I have dealt with cases where the judge allows as little as 10 minutes to address a panel of 21 potential jurors. In many instances our process of selecting a jury is form over substance. If the right questions are asked and answered with a "yes" or "no" we treat the potential juror as a qualified candidate. There is one New York Supreme Court Justice here in Monroe County that gives attorneys all the time they need on their first pass during jury selection. As a result, I have selected, in my opinion, some of the most fair and thoughtful juries in front of him. For that matter, it was in front of that judge that I was able to find the one potential juror that would admit his bias.
    It is often said that when your case goes to a jury there is no control over the outcome. Bias and prejudice are not the only issues that both sides of a case worry about. When you pick a jury, you never truly know what you are in for. I have had jurors hang up on the most insignificant detail, miss the entire point completely or pleasantly surprise me as to their level of thoughtfulness.
    As continued awareness of issues regarding bias and prejudice are addressed, perhaps confidence in our jury system will continuously improve.