JURY SELECTION CONFOUNDED BY STEREOTYPES AS LAWYERS' BIAS ASSUMPTIONS PROVE FAULTY

THE BALTIMORE SUN

Before a high-profile federal trial began in Baltimore last month, lawyers for the three black defendants filed a motion claiming that the prosecution deliberately - and illegally - dismissed black jury candidates to pack the panel with whites.

"They want a jury that may be sympathetic to the death sentence," defense attorney Archangelo Tuminelli said.

But the judge ultimately ruled that the allegation was wrong. And, it turns out, the stereotype might be, too.

While many lawyers have long relied on stereotypes to figure out how potential jurors might lean, those characterizations are increasingly turned on their heads, trial consultants said.

Women can be harder on rape victims who put themselves in risky situations. Business people could be bitter toward companies because of economic cutbacks. And minorities, who are supposed to favor the defense because they distrust law enforcement, often side with prosecutors, while whites sometimes favor black defendants, even if it's just out of a fear they'll be labeled racist if they do otherwise.

In the Baltimore case, Assistant U.S. Attorney Kwame Manley, who's black, told the judge during a hearing that he had hoped one African-American alternate would make the jury because the man was a "clean-cut," Wall Street Journal reader, who was more likely to identify with the government than admitted drug dealers.

Last week, that federal jury, made up of 10 whites and two blacks, convicted the defendants of running a drug conspiracy known as "Special" and murdering witnesses. This week, members will consider whether two of the men - Melvin Gilbert, 34, and James Dinkins, 37 - should be sentenced to death.

There's not much anyone can tell about how jurors will vote from looking at them, experts said.

A 2004 paper published in the journal of the American Psychology-Law Society concluded that black jurors only become more receptive to mitigating factors underlying criminal behavior when the defendant is a black person facing the death penalty for killing a white one.

"The death penalty is a really complex issue, because it's not just simply are you for or against," said Jeffrey Frederick, a psychologist and trial consultant who's written a book on jury selection. "It's a complex set of attitudes and experiences that people bring to bear."

Frederick analyzed jury candidates for the defense in another federal case tried in Baltimore this spring. Defendant Patrick Byers Jr. was convicted of ordering the murder of witness Carl Lackl, but a jury with three black and nine white panelists spared him the death penalty.

Frederick said that jury had black candidates who had tough upbringings, like the defendant's, whose mother was an addict and father a felon. But instead of making them sympathetic toward Byers, their shared backgrounds made them judge more harshly.

"We had a juror in the Byers case, who grew up in that area where the crime occurred, and basically said, 'Look, I grew up there, I had to go through hard times there, and I didn't kill anybody,' " he said.

There's no clear theory about why stereotypes that may have once held true no longer do, though some legal groups attribute it to civil rights movements changing attitudes toward discrimination, leading people to criticize their own groups rather than others. Others say stereotypes have dissipated along with barriers among communities that kept like people separate, based on ethnicity, religion and race.

In 1936, Clarence Darrow, the well-known criminal attorney, published an essay on "How to Pick a Jury" in Esquire magazine.

In it, he claims Irishmen were "emotional, kindly and sympathetic." A German Catholic "will want to help you." Presbyterians were "cold as the grave." And women, then new to the juror pool, were "all puffed up with the importance of the part they feel they play."

The article earned Darrow a file with the Federal Bureau of Investigation, which thought Director J. Edgar Hoover may want to quote from it as an example of "how unscrupulous criminal lawyers stimulate disrespect for law."

Anne Reed, a trial attorney and jury consultant based in Milwaukee, Wis., believes the essay is supposed to be comical and that there is some wisdom in Darrow's words - "a subtlety of observation there that we could all do better at" picking up on, she said. "But it's marred by the slapping of the label across each observation."

The goal, she said, is to get beyond stereotyping by asking questions.

Lawyers don't actually pick a jury; they pick who gets left out, with each side wielding a certain number of exemptions, examining potential jurors through a question-and-answer process known as voir dire.

Jury candidates for the 2005 child molestation trial of Michael Jackson, who was ultimately acquitted, were asked about their education, family life and their familiarity with the 1993-1994 investigation of the pop singer. Candidates in the 2007 murder trial against music producer Phil Spector, which ended in deadlock, were asked their opinions on celebrities, court processes and gun ownership. (A jury in his retrial convicted him in April.)

"The best of all possible predictors are attitudes directly related to the case, attitudes and personal experience," said Sean Overland, who published The Juror Factor: Race and Gender in America's Civil Courts in December.

If you're trying a pharmaceutical case, you want to ask about experiences with prescription drugs, he said. If you're trying a violent crime case, you want to ask if jurors have been victims.

Judges often limit what can be asked, though, out of concern for jurors' privacy and getting the trial under way swiftly. The Byers' and Special juries added another wrinkle in that members were kept anonymous for their safety, further restricting what attorneys could ask.

"Sometimes, you're put in the awkward position of this many men, this many women, this many black people, this many whites," Overland said. "When that's all you have to go on, there's an incentive to use that in jury selection, even though it's illegal."

In 1986, the U.S. Supreme Court ruled in a case known as Batson that discharging potential jurors based on race violates the Constitution. That's what Tuminelli and his colleagues charged Manley and his co-counsel with, but the judge disagreed.

Maryland U.S. Attorney Rod J. Rosenstein said his office is comfortable with all kinds of jurors, as long as they're not biased against the prosecution, because his prosecutors prepare well for cases and bring in solid evidence. More than 90 percent of those charged in Maryland's federal court plead guilty, Rosenstein said, and more than 90 percent of those who go to trial are convicted.

"The demographics of the jurors have at best a very minor effect on the outcome," said Randolph Jonakait, a professor at New York Law School who published the book The American Jury System in 2006.

"Almost always, it's the evidence that wins the case, not the background of the jury."

Stereotypes

Attorneys have judged potential jurors based on stereotypes for years, hoping to weed out those who may be unsympathetic to their arguments. Here's a look at some of the stereotypes criminal lawyer Clarence Darrow believed more than seven decades ago:

* Irishman: "If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself."

* Englishman: "He is never sure if he is right unless the great majority is against him."

* German: "He wants to do what is right, and he is not afraid."

* Presbyterians: "He is cold as the grave; he knows right from wrong, although he seldom finds anything right."

* Methodists: "They are not half bad; even though they will not take a drink."

* Scandinavian Lutherans: "They are almost always sure to convict."

* Wealthy men: "He will convict unless the defendant is accused of violating the anti-trust law, selling worthless stocks and bonds or something of that kind."

SOURCE: Esquire Magazine article printed online by University of Missouri-Kansas School of Law

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