By STEWART BEACH
A GOOD many lawyers I have observed in action retain a curiously dated impression of the men and women who make up today’s juries. Give them “twelve good men and dumb,” they seem to feel, and a few well-chosen bursts of oratory will change this human clay into putty which they can mold as they desire. What they overlook is the fact that it is practically impossible to find this ideal jury anywhere in America today.
After witnessing the selection of a great many juries, I have reached the conclusion that lawyers rarely have any real grounds for rejecting jurors on the evidence produced in their examination, unless a man’s unfitness to reach an honest verdict is apparent almost from the outset. I doubt that justice is often served by flagrant overworking of the peremptory challenge. An unconscionable amount of time is spent in spinning out these interrogations. My own impression is that most of the questions jurors are asked defeat their very purpose of furnishing clues to a man’s prejudice.
I doubt, too, that jurors are impressed by histrionic talent in court. It has been my experience that just the opposite is true. Men are wary of being taken in by emotional appeals on the part of gifted attorneys. Their attitude was nicely expressed by a prospective juror who, during examination by a famous trial lawyer some years ago, maintained stoutly that he was prejudiced against the defendant. When pressed for an explanation he said, quite honestly I am sure, “Well, sir, when they call you in, I figure they are really in trouble.”
Despite their expert knowledge of the law, attorneys are completely insulated from a most important part of courtroom drama — the reactions of those who sit in judgment on their clients. They have never been one of the twelve who sit in the jury box and gather about a table in the jury room. To make up this deficiency, it seems to me they rely heavily on the pleasant folklore left by legal giants who like to recall in their memoirs the shrewd intuition which sensed an unfavorable juror, or the impassioned plea which won freedom for some mother’s son of doubtful innocence. What these memoirs fail to prove - beyond a quite reasonable doubtis that the verdict was won because of, rather than in spite of, these bits of courtroom strategy.
How little oratory proves today—in New York County, at least should be apparent from the fact that during the past decade the record of convictions in criminal cases has been something over 90 per cent. From my own observations I am not surprised.
I have a somewhat special interest in watching lawyers pick their jurors, since, while I know nothing of law, I write fiction in which the study of character is also important. During long hours spent in courtrooms, waiting to be accepted or challenged, I used to amuse myself by trying to size up each new candidate as he was examined.
It is a nice problem to type a man as he sits in the witness chair beside the judge. You learn his name and address, what he does for a living, whether he has relatives or friends involved in the case, whether he knows anyone in the police department or the district attorney’s office. You ask him the special questions designed to draw forth any unhappy experience in his past which might prejudice him in the case on trial. From then on, the only useful purpose of a lawyer’s questions is to establish some bond of understanding with I the man, gently probing for a reliable clue to what his reactions would be as the evidence unfolded.
Yet that is exactly what fails to emerge from most examinations I have heard, and for a very simple reason. After the biographical data have been extracted, the lawyer launches on a series of legalistic questions which can be productive of no more response than an uninflected “Yes” or “No.” The questions are as stereotyped as though they were read from an old script, rehearsed till the actors are stale in their parts. Speech is one of the most animate clues to character. But the prospective juror, sitting sober-faced and self-conscious before the room filled with people, is thrown no lines by the lawyer that give him a chance to disclose more about himself than his acute discomfort or boredom.
Sometimes the examination is prolonged by lengthy hypothetical questions. Conceivably these queries may occasionally dig out a prejudice, though I have never happened to hear such a result. The principal effect when such a question is droned out over and over again with each man examined is to arouse impatience in the members of the panel waiting to be called.
Such a question was introduced in a case I remember, concerned with two young men who had set out to commit a robbery. Because their victim had died, however, they were being tried for firstdegree murder, since under New York law to cause death during the commission of a felony leaves the perpetrator open to trial on a capital charge. The prosecution said it would show that death had resulted from a blow struck by one of the defendants.
STEWART BEACH give up his work his editor and author to serve as a colonel in the Army’s Public Relations Bureau during the war.
In examining jurors, defense counsel asked a windy question which went something like this: “If it should appear, through competent medical testimony which may be introduced, that the deceased suffered from a heart ailment, and if it were brought out, through this same authoritative medical testimony, that his heart condition was such that the deceased might have died at any time, would you accept that testimony?”
All the men examined answered “Yes,” as I should have. I felt His Honor might have something to say about the law on men who died of weak hearts when they were faced by the pistols of a pair of young brigands. But I never found out. The twelve men and two alternates were chosen before my name was drawn.
There seems to be no consistency in the test of a juror’s fitness. Once when I answered “Yes” as counsel asked me whether I knew anyone in the district attorney’s office, I was immediately excused by agreement between both sides. I had said I knew the district attorney himself and when I walked out of the courtroom that day I congratulated myself that I should never have to serve on a jury as long as he was in office, But the next time that I answered “Yes” to that question and explained that the district attorney was a friend of mine, the lawyer said, “Well, that wouldn’t prejudice you in this case, would it?” I was so surprised that I was shaken out of the usual monosyllable to answer, “No, of course not.” But it was all right. I was challenged, anyway.
In my debut as a juror, it happened that my name was the first to be drawn from the wheel, and I sat uncomfortably in the witness chair for half an hour while an assistant district attorney briefed the panel on the case. At last he turned to me and when he learned that I had never served on a jury in any court he asked for agreement by the defense to my release. Even the judge concurred, with the observation that “we shouldn’t start him out on a murder case.” Since that time I have seen other men accepted for murder juries without experience on any case. Were these lawyers more shrewd? Or less?
Some attorneys make a deliberate attempt to impress jurors favorably with their personality during the process of examination. Occasionally, I should guess, the results are different from those they expect. I remember one case when the jury box had been filled at a single drawing and a sort of mass examination was in progress with the evident intent of shortening the selection. Defense counsel, whose name was well known for his theatrical conduct of cases, strolled over to lean winningly on the rail, where he delivered himself of a discourse which was fatuous to the point of embarrassment. Finally the judge admonished him. “When you have finished making love to these people,” he snapped, “perhaps we can get on with the selection of a jury.”
Few individuals like to serve on juries. No matter how busy they may be, their lives are interrupted by a legal summons as peremptory as any military order. There was no appeal when I was last a juryman in New York. No matter what the emergency in a man’s life, he was denied access to the judge until his name was drawn from the wheel, and that might mean two or three days. One wretched friend of mine, after taking his pregnant wife to a hospital in the early morning, subwayed downtown to twist and turn in a courtroom seat, having been refused the right to appeal to a reasonable judge to excuse him.
But when a man has been chosen as one of the twelve, he forgets his impatience with the long process of getting a jury and gives undivided attention to discharging an ancient duty as a citizen of his community. In this mood he expects to cut through any attempt to cloud his judgment of the facts as presented by the evidence. If he had any doubt of what was expected of him before, it was cleared away by the questions the attorneys asked during his examination. Is it any wonder that he rejects appeals to his emotions which seem directly contrary to the intent of his interrogation?
The fact is that in his zealousness to avoid emotional entanglements, the average juryman becomes what the Army calls a “guardhouse lawyer.” For the duration of the case he is an amateur of the law, engrossed in rules of evidence as he picks them up in court, sitting in cold judgment on each new witness. Emotional summations do not impress him. In the jury room he is anxious to discharge his responsibility in full accord with the law. Whatever his opinion may be of the guilt of the accused, he is bound to assure himself that it has been proved beyond a reasonable doubt. Otherwise, he will vote for acquittal. He asks for repeats of His Honor’s charge on points of law. His final decision is apt to depend on the crisp efficiency with which each attorney has conducted his side of the case.
Juries develop little sympathy with the accused in a criminal case, despite the evident feeling of defense counsel that this is the easy road to acquittal. As a matter of practical observation, the personality of the lawyer himself has far more influence on the jury than the plight of the defendant.
The defendant is very largely a lay figure in the courtroom scene. He sits at a table, whispering now and then with his counsel. But attention is focused on the attorney, not on the defendant. Even if he takes the stand himself, he is little more than another in the parade of witnesses. He is a climactic witness perhaps. But nevertheless he is a witness. Jurymen give him no more heed in most cases than they pay to all the others.
You survey witnesses with all the honesty you can muster from a jury box. Respectability is no guarantee of credibility. Once I was serving in Federal Court during the trial of two men charged with extracting money from an arrested felon on the promise they would gain him a lighter sentence. The prosecution’s array of witnesses gave the appearance of telling anything but the whole truth until a notorious gangster was called to the stand.
The defense did its best to discredit him. With stern sarcasm, after finding the witness claimed no visible means of support, defendant’s counsel asked, “And what have you been doing in New York these past six months?” “I’ve been sick,” the gangster said. “Oh, you’ve been sick, have you?” and there was quick and phony indignation in the tone. “Perhaps you will tell the court just what has been the matter with you that you’ve been kept from earning an honest living like other men.”
There was a perceptible pause. Then the witness answered, “I got a bullet in my head!” The candor of this reply delighted the court as much as it upset the attorney, and destroyed the value of further cross-examination. Incidentally, the gangster was the first witness the jury had entirely believed.
The finest flowering of courtroom dramatics I ever observed came in the summation of a defense attorney who had been unable to shake the prosecution’s witnesses as they spun a web of guilt around his client. At the height of his final plea he became so impassioned that he actually shook saliva from his mouth, narrowly missing an alarmed woman juror. If the evidence had not pointed so incontrovertibly to the guilt of the accused, I think this final bit of trumped-up fury might have succeeded in prejudicing the jury. I wonder if lawyers ever think of that.
Old-fashioned Fourth of July oratory has long since disappeared from all but the most rural village bandstands. Perhaps it no longer thrives even there. But it lingers on in courtrooms, where attorneys still believe they can win poor cases by smothering a juror with appeals to sentiment and emotion.
Can they? I doubt it. I believe that American citizens reject instinctively attempts to confuse their judgment. I believe that appeals through the back door to their emotions do nothing more than arouse their suspicion that if the attorney had much of a case he would not need to depend on such methods. I believe they are impressed by the attorney who appears to be giving a calm, quiet, orderly presentation of evidence which indicates that he, too, is searching for the truth rather than a trick ending to a courtroom drama.
To my way of thinking, it would be a healthy move if the immunity of lawyers to jury service were withdrawn — in criminal cases at least. A lawyer’s business would be disrupted no more by time spent in learning to view the courtroom from the other side of the railing than is that of hundreds of others who must appear no matter what crisis is present in their personal lives. Is there any reason why a lawyer should not reach an honest verdict, bound by the same test which is imposed on other citizens: “Would you judge the facts on the evidence as it is presented in this court?”
As for the possible barrier of his legal knowledge, could any lawyer fail to bow to higher authority when he was asked, “And would you take the law as it is given by His Honor?”
I am sure he would answer meekly, if perhaps reluctantly, as does every other citizen, with an uninflected “Yes.”