“We’ll need to hire a jury consultant, of course,” said Dale, looking over steepled fingers.
Frank frowned. “Oh.”
“You don’t sound enthusiastic.”
“I— no, we’ve got to do whatever is necessary. It’s just that tailoring a jury to favor our side… well, it seems to undermine the whole concept of a fair, impartial jury.”
“That’s right.”
Frank’s eyebrows went up. “You agree with me?”
“Certainly. You ever read To Kill a Mockingbird?”
“No. Saw the movie, though.”
Dale nodded. “One of the few really good film adaptations of a novel. In both the book and the movie, Atticus Finch gives a speech to the jury about how the jury system isn’t just an abstract ideal. ‘I’m no idealist to believe firmly in the integrity of the courts and our jury system—that is no ideal to me, it is a living, working reality.’ Well, you know what happened in To Kill a Mockingbird: the all-white, all-male jury convicted a black man of a crime he was physically incapable of committing. I’ve been checking up on you, Frank; you’re an idealist, an Atticus Finch. But I’m afraid a lifetime in this nation’s courts has taken the rose tint out of my eyeglasses; I don’t believe in the integrity of the courts or the jury system. If you put an innocent person in front of the wrong jury, they’ll find him guilty. Still, it’s the system we’re stuck with, and we owe it to Hask to try to sculpt a jury that will at least give him a chance.”
“Still…” said Frank.
“You can be certain the prosecution is going to be trying to shape the jury to favor their side. Believe me, Frank, in a major case, it’s tantamount to malpractice not to use a jury consultant.” Dale paused for a moment. “In fact, there’s an old joke lawyers tell. In England, the trial begins once jury selection is over. Here in the States, once jury selection over, so’s the trial.”
“Okay, okay. So, what do we look for?”
“That, son, is indeed the question. There are many rules of thumb.” He rose from his chair, which seemed to sigh in relief as he got off it, and moved over to one of the floor-to-ceiling bookcases. He searched for a moment, then plucked a book off the shelf. Frank could see its title: The Art of Selecting a Jury. Dale flipped it open, and read a passage, apparently at random. “ ‘Women are often prejudiced against other women they envy, for example those who are more attractive.’ ”
Frank rolled his eyes. “Good grief! How old is that book?”
Dale turned to the copyright page. “Not very. It was published in 1988—and the author is a superior-court judge right here in L.A. County. But you’re correct: it’s all prejudice and stereotypes.” He closed the book and looked at Frank. “For instance, prosecutors love northern Europeans—Germans, Brits, and especially Scandinavians. Real law-and-order types, see? The defense normally desires blacks, Hispanics, Natives, southern Europeans—cultures that are less likely to believe the authorities are always right. If you’ve got nothing else to go on, the prosecution will select jurors who are wearing gray—conservative, see? And the defense will select jurors who are wearing red—liberals.”
“Okay, but—wait a minute! Wait a minute! Isn’t Hask entitled to a jury of his peers? Obviously, his peers are Tosoks, and there are no disinterested Tosoks available—so maybe we can get this whole silliness set aside right now.”
Dale smiled indulgently. “Although many Americans think they’re entitled to a jury of peers, that’s simply not true; that’s a provision of British common law, not the U.S. Constitution. The Sixth Amendment simply provides for ‘an impartial jury of the State and district wherein the crime shall have been committed.’ It doesn’t say a blessed thing about peers. In fact, consider the Simpson trial again: O.J.’s peers would be award-winning athletes, or perhaps mediocre actors, or commercial pitchmen, or millionaires, or those in interracial marriages—but every single person who fit any of those categories was excluded from sitting on the Simpson jury.
No, Hask must face a human jury—a jury of beings as alien to him as he is to us. Still, as his defense counsel, I owe it to him to try to craft a jury that will be sympathetic to his case.”
Frank sighed. “All right, all right. How much does a jury consultant cost?”
“The average fee is a hundred and fifty dollars per hour—although I tend to use people who charge at the high end of the scale. Total fees in a big case like this one can range from around ten grand to a quarter of a mil.”
Frank frowned again. “I told you I don’t have access to any funds.”
“I’ll take care of it,” said Rice.
“Thank you.” A pause. “But what you were saying before—I mean, isn’t it illegal to discriminate in jury selection on the basis of race or gender?”
Dale nodded. “Of course; the Supreme Court has confirmed that. Batson v. Kentucky, among others. But all that means is if you don’t want any blacks on the jury, you find some other reason to get rid of them. For instance, you see a black gentleman in the jury pool, and you want grounds to excuse him, ask him if he’s ever had reason to distrust the police. Of course he’s going to say yes, and—presto!—he’s off the jury, without race ever being mentioned. The point is that with the right jury, it’s possible to get someone off even if they committed the crime—”
“Like O.J.”
“No, not like O.J.,” said Dale. “We’ve been down that road before. But consider the case of Lorena Bobbitt—there was zero doubt that she’d cut off her husband’s penis. Or California v. Powell : there was zero doubt that those officers had beat Rodney King within an inch of his life—the whole thing was caught on videotape. Still, in both cases, the undisputed perpetrators of the crimes were acquitted by juries.”
Frank nodded slowly. “So in this case we want bright people, people who can follow a scientific argument?”
“I don’t know about that. The standard advice is if you’re defending a guilty party—which, my friend, despite your wide-eyed optimism, we might indeed be doing—then you want a dull-witted jury. Bunch of rubes who won’t see through the tricks you’re pulling. That means we’re off to a good start right away. The jury pool is always skewed toward the poorly educated and the unemployed. A bright person can usually find a good reason to get out of jury duty.” Dale paused. “You know why the DNA evidence failed in the Simpson criminal case? Because there were conflicting experts. You’ve got one side saying one thing, the other side saying something else, and the uneducated jury says, well, if these experts can’t figure it out, then how can we? And so they simply ignore that line of evidence, and make their decision based on other considerations.”
’Okay, so who do we want? Space buffs?”
“I wish. But you can bet the prosecution will get those eliminated.”
“Star Trek fans? Science-fiction fans?”
“They’d probably be good, but, again, too obvious—the other side will strike them.”