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Playing By The Numbers

This is a lesson about jury selection in Federal Court. It came to mind at a recent Federal Practice Committee meeting. There was a discussion about streamlining the present selection process. What is contemplated, as I understand it, is a computerized drawing of jurors from the venire against whom strikes will be exercised. The petit jury will be those who remain. In the wink of an eye, we are told, a computer will draw, in civil cases, sixteen names, and a correspondingly increased number in criminal cases.

There is, unfortunately, a cost to such wizardry: the computer will not include any biographical information. So, if I get this proposal right, we will quickly obtain the right number of jurors but we won’t know anything about them. There is some discussion about generating a separate sheet of biographical information after, I guess, the computer does its magic on the day of trial. I shudder to think of trying to co-ordinate this information on the fly at the last minute.

I’m from the old school. When I’m scheduled to select a jury I like to trudge over to the clerk’s office early and pick up the list of those summoned. Then I pour over that multipage document with its scant biographical information. I attempt to determine which, if any, of those called will be receptive to or at least not opposed to the theme of my case. In criminal cases this mostly involves trying to determine the few among those called who will not attempt to lynch defense counsel at the mere mention of the charges lodged against the defendant. I then make appropriate notations.

This exercise results in multi-colored, teeny scribbles by each juror’s name. I bring this work of art to court on the appointed day with an array of fine-point pens and colored markers. I try to match information with faces, adding to the list as much additional info as I can gather from responses to questions from the bench.

Since jurors respond in the order they’re seated and not as they are sequenced on the list, this is a futile exercise. Inevitably, after about sixteen responses and frantic page turning I am four jurors behind with no hope of catching up. I hope against hope that co-counsel has a better system than I. That is never the case. The inevitable consequence is that I exercise peremptories with about as much precision as a blindfolded third grader attacking a piñata at Edgewood School’s Arts Fun Day.

The true futility of the federal jury selection process was impressed on me years ago. I was an Assistant United States Attorney scheduled to prosecute a bank robbery in the Waterbury courtroom before the intimidating late Judge Thomas Murphy. Towering and impatient, Judge Murphy placed a premium on accelerating the trial process and his deep, rumbling courtroom voice always carried a touch of disdain, especially when directed at counsel unable to keep pace with His Honor. The now-famous, then ingénue, Public Defender Greg Craig represented one of the accused; former AUSA Howard Eckenrode another; and a since- forgotten out-of-state counsel a third.

The Government’s case was pretty strong. No matter. I still wanted to make sure the right jury was chosen to get the conviction. Ever conscientious, I visited the clerk’s office weeks before, got the list, identified the anti-government types, the ones who might ignore the evidence and improperly rely on emotion to vote not guilty. (My, how times have changed.) I made appropriate notations. I was prepared to select a prosecution jury and deliver yet another conviction for the United States.

Judge Murphy’s voir dire was cursory. Little additional information was gained. Jurors identified themselves by name and essentially repeated the sparse biographical information I already had. Nothing exceptional.

One juror, however, caught my attention. I had flagged her earlier when I picked up the list. She was young and too casually dressed for court. She had a laid-back affect and informed us she was educated at one of those schools prosecutors are taught to be wary of—Bennington, Antioch, Berkley or something similar, I really can’t remember. She would certainly not be a prosecution juror. I was determined to use my first strike on her. When I spotted her earlier she was number 36 on my list. I wrote her number down as a definite strike.

The clerk passed the peremptory list back and forth, first to the Government, then the defense. No problem. I boldly wrote in my first strike: number 36. I exercised my remaining strikes on others less worrisome. I comfortably awaited the drawing of the twelve plus two alternates.

Imagine my dismay as Kevin Rowe, then a courtroom deputy, called by name the juror I had stricken as 36. I watched uneasily as she entered the jury box, first row, third seat. She remained in that seat throughout the trial. She drew nigh and gave her attention throughout the trial, following everything intently. She listened to the instructions. She and the defendants’ eleven other peers retired to the jury room and deliberated. For hours. One full day. Then into the next.

Of course you know the result. The jury voted to convict—eleven to one. Not even close enough for Government work. A hung jury and a mistrial. The juror I thought was number 36 was the lone not guilty.

What I learned then, and what I had failed to realize, is that the early list of those summoned which the clerk’s office generates and maintains and that is available for counsel weeks before trial is
not the final list. Once notices are sent many jurors call in with scheduling problems and are excused. The final list is generated much later, a day or two before jury selection. And, of course, that list is renumbered.

I had been too clever by half. In my eagerness to get a jump on the selection process I had moved too quickly. But I learned two valuable lessons. First, I will always make sure I have the final list. More importantly, never again would I strike by number. Numbers are for bingo, zip codes, SAT scores and sentencing guidelines. From that day to this I strike by name.