The inexact art of jury selection
One lawyer avoids men in designer suits.
By: Peter Small Betsy Powell Courts Bureau, Published on Tue Oct 14 2008
One lawyer avoids men in designer suits.
Another turns away roofers.
Some reject teachers.
With the busy trial season in full swing in downtown Toronto's Superior Court, it is also high season for the intuitive and inexact art of jury selection.
In Canadian criminal trials for serious offences, lawyers for each side can refuse 12 to 20 prospective jurors without explanation, employing what is called a peremptory challenge.
Several cases requiring juries are scheduled to begin this week, including the first Jane Creba murder trial tomorrow, and anyone watching the winnowing-down process will wonder why lawyers pick some candidates and reject others.
Sometimes lawyers can ask prospective jurors, briefly, if they are biased against the race of the defendant or affected by pre-trial publicity. But normally the Crown and defence lawyers only know the candidate's name, area of residence and profession as they pick 12 jurors out of groups of 60 to possibly 400 prospects.
So snap judgments are in order, based on myth, experience and gut instinct.
David Midanik, a defence lawyer who represents many young black men accused of gang and gun-related crimes, says he wants jurors who are "educated, primarily in liberal arts," as well as open-minded and fair. "You don't want engineers or accountants. They tend to convict. They don't operate in the sphere of reasonable doubt," he says.
He is reluctant to choose men older than 50, especially if they are extremely well-dressed because they tend to be "people who fancy themselves too much and ... less open-minded." And given the "incessant bombardment" in the media about crime rates rising, when they aren't, "it's especially important to find people prepared to think independently and who do not buy into mass marketing."
Defence lawyer Edward Sapiano also wants an intelligent jury, which he says is easier to find in downtown Toronto with its abundance of professionals than in a suburb like Brampton with its more blue-collar workforce.
"I find a by-product of education is questioning. I would like them to challenge the Crown's case."
He is also wary of people raised in Communist countries, whose origin he guesses after hearing them speak. "They tend to lend too much credence to the state." Also, he jokes, he likes to pick at least one attractive woman. "Then no matter how bad the evidence is, I always have someone nice to look at."
An assistant Crown attorney, who spoke on condition of anonymity, says he prefers older, more conservative jurors when the accused is young, as they often are. "If someone stabbed someone in a bar, I don't necessarily want someone who had been in a bar last night and got into some kind of fracas."
Some Crowns avoid teachers and people in the helping professions, like social workers, who might have dealt with people with criminal pasts, he says. He doesn't subscribe to that theory but admits he avoids roofers and tow truck drivers out of fear they may have shady associates.
He relies on his gut instinct, and looks for people who he feels comfortable with. "At a social gathering, if I didn't know anybody, who would I feel comfortable with going up to and having a conversation? I want people who will listen and trust what I say."
University of Ottawa law professor David Paciocco says lawyers who use "amateur psychology" to pick a favourable jury are engaging in "a mug's game," and there "is no empirical basis for any of these assumptions."
"I've seen lawyers who refuse to take men with beards or moustaches because they believe that those people are basically trying to hide something and others who look at the quality of the polish job on the shoes. It's really an opportunity for lawyers to indulge their own biases more than a rational basis for selecting appropriate jurors."
It's also illegal in Canada to question jurors about their deliberations so it is impossible to know if a juror who comes to court dressed in flip flops and a Mickey Mouse T-shirt is likelier to convict or acquit, even though good grooming and an alert demeanour are other criteria lawyers seek.
Defence lawyer Edward Greenspan casts a skeptical eye on all of the myths. "I happen to come from an old school that says if you pick the first 12 jurors, you're probably not going to do much better than if you start applying these nonsensical and silly and stupid rules."
In the United States, jurors fill out lengthy questionnaires about themselves, but it's not much help, Greenspan says. When he was in Chicago to defend Conrad Black, most of the defendants hired their own jury experts, but these consultants couldn't agree among themselves. "The consultants had no idea," he says.
Defence lawyer Emma Rhodes has no preferences when it comes to what people do for a living but looks for "anyone who appears friendly and smiles. I quickly try to get rid of those that obviously don't want to be there. People who are annoyed with having to take time out of their day are not those you want deciding the liberty of your client."
Toronto defence lawyer Scott Cowan tries to gauge not just how someone might view his client but also him. He does this, in part, by looking for "eye contact that tells me if this is a person who will give me the time of day."
Federal prosecutor George Lennox is after jurors who want "to be an active and enthusiastic participant in the trial process" and "ideally ... (with) broad life experience and healthy measure of common sense. Likely finding a juror who has all those characteristics is probably an impossible task."
Lennox doesn't understand why some Crowns reject teachers.
"I had three teachers on my last jury, one of them retired, the other the jury foreperson." The jury convicted the accused of cocaine trafficking. "The bottom line is looks can be deceiving."
And with the automatic exclusion from the jury pool of veterinary surgeons, lawyers, doctors and people who work in law enforcement, it's unlikely defendants are getting "the jury of your peers that we once fantasized about," says law professor Paciocco.
Judges often seem to be "pretty indulgent" when it comes to discharging people who come up with excuses, creating a sense "that the only people who make it onto juries are people who are unemployed or retired or who have union support that will give them their wage while they're sitting in a jury box."