Picking a Jury
A native New Yorker, NEWMAN LEVY is a lawyer, a versifier, and the author of much lively writing about opera, movies, and the theater.
by NEWMAN LEVY
A TRIAL lawyer has to be many things, but above all he should be a good judge of human nature. After years of cross-examining and clashing with hostile witnesses his instincts become sharpened. Gestures, mannerisms, inflections of the voice, reveal to him secrets undetected by the less experienced. If he has learned his business he can pretty well tell whether a witness is lying or telling the truth.
But when it comes to selecting a jury that will incline favorably to his side, his instincts and psychological insight are slightly more helpful than they would be in picking numbers on a roulette wheel. Every trial lawyer plays certain systems; he acquires hunches and rules of thumb; but every one I have ever spoken to has admitted that he knew little more of the art of jury picking after years at the bar than when he was a tyro.
Ferdinand Pecora, who was an eminent advocate before he became a Justice of the New York Supreme Court, tells me that when he was trying cases he would never take a man with a beard. “We are living in a clean-shaven age,” he explained. “The fellow who wears whiskers is an individualist, one who defies convention. He will be less amenable to persuasion than the man whose smooth face indicates that he conforms.”
“Suppose he wears whiskers to hide a weak chin?” I asked.
“So much the worse,” replied the judge. “Such a fellow would be likely to subordinate his honest convictions to the stronger members of the jury.”
I will leave the validity of this argument to be tested by psychologists, but judging from Judge Pecora’s success in persuading beardless jurors to decide his way there may be something to his theory.
One of my friends says that he does not like engineers and accountants on his juries. “I don’t trust the mathematical mind. It’s too logical and preeise.” I ventured to suggest that it might depend upon whether the juror was on the right or wrong side of the case. There have been time’s when I would have been grateful for a juror with a bit of logic in him; there have been other occasions when jurors capable of intelligently considering the evidence might have been an embarrassment.
I once tried a murder case before Judge James Garrett Wallace, who for many years had been a mighty prosecutor. One of the talesmen called, a shaggy, Bohemian-looking fellow, testified that he was a playwright and poet. On further questioning he admitted that none of his plays had been produced. I have a few hunches of my own (one is that literary people are frequently human beings), so I decided to take him. The judge called rue up to the bench.
“Why did you accept that fellow?” he asked.
“Well,” I answered, “ I do a bit of writing myself, and I have a sorl of fraternal feeling.”
“Well, you pulled a boner,” said the judge. “That fellow is a nut. I wouldn’t take a professional writer. They have too much imagination.”
Many hours later it began to appear that I had pulled a boner. It was late at night; I was sitting smoking in the judge’s chambers, and the jury had been deliberating for hours. It was obvious that they wore hopelessly deadlocked.
At length a court officer brought in a note from the foreman of the jury which the judge handed to me. “We are eleven to one,” it said, “and there is no possibility of an agreement.”
“What did I tell you?” His Honor said. “Next time lay off those literary fellows.”
We went down to the courtroom and the judge discharged the jury. Afterwards I went out into the corridor and discussed the case, as I usually do, with the discharged jurors. I learned that eleven of them had voted for conviction almost from the first ballot. My playwriting juror had announced that he was convinced of my client’s innocence, and would stick out for acquittal till hell froze over. The judge had been right, of course. The fellow was an eccentric, but you never can tell which side the eccentricity is going to help.
I had a curious experience some years ago trying a case in a small country town about a hundred miles from New York City. Knowing the hazards that face a city lawyer when he leaves his own bailiwick, I took the precaution to hire the leading local attorney to assist me. I was picking the jury when a young man with one of the meanest, toughest faces I have ever seen was called into the box.
“We certainly don’t want him,” I whispered to my associate.
“He’s all right,” he whispered back. “Take him. He’s my son-in-law.”
I am unable to say whether I he young man’s countenance belied his disposition, but he gave complete satisfaction as a juror. I should hasten to add, last any question of professional ethics should arise, that this was in a small community where everyone knew everyone else, and the opposing counsel not only was aware of the relationship to my associate, but was related himself to the juror.
Some lawyers take an inordinately long time to select a jury. I remember one case in which I assisted an eminent attorney who took ten days. My own belief is that, barring actual bias or prejudice which can be determined by a few questions, the first twelve men in the box will do, in most cases, as well as the jury obtained after lengthy examination. I believe too, and this is confirmed by talks with jurors, that they are apt to become annoyed by extended questioning. And one of the cardinal rules of trying cases is never to annoy a juror.
Under our trial system each side is allowed a certain number of peremptory challenges — that is, challenges for which a lawyer does not need to give a reason. It ranges, in New York, from six peremptory challenges in civil cases and certain criminal cases, up to thirty in first degree murder cases. This gives a lawyer ample latitude, and much of the delay in selecting juries is due to the maneuvering of the lawyers to compel their opponents to exhaust their peremptory challenges first. The side with a few challenges left is in the advantageous position of a chess player who has saved his rooks and queen after his opponent has lost his.
I remember a case about a year ago in which the defense had used all his challenges while the prosecutor had all of his left. The Assistant District Attorney looked over the faces in the courtroom, decided which he liked, and then proceeded calmly to examine talesmen until he had precisely the jury he wanted.
This explains why so much time is frequently spent in asking what to laymen sound like silly, unnecessary questions; it is usually to try to coax an undesired talesman into admitting actual bias or prejudice and thus save a peremptory challenge. Of course, if the prospective juror looks good the lawyer cuts his examination short.
In criminal cases a defendant obviously would not want jurors connected with the police, or related to them. In accident cases the defense would not want jurors who have been the victims or whose close relations have been victims of negligence. There might not be any actual prejudice, but there is no sense in taking the risk.
Most lawyers to whom I have spoken will not accept the wives of lawyers, the theory being that they are apt to have a muddled idea of the law derived from their husbands, instead of accepting the pure, undefiled version from the Court. My own view is somewhat different, especially if I have a tough case. When I can anticipate that the judge’s exposition of the law will not do my client any good, I am not averse to the possibility of a bit of confusion in the jury room.
It has been my experience that racial or religious loyalty play, very little part in the deliberations of jurors. If it has any effect it is to cause the members of a group to lean backwards against members of their own group in an effort to seem impartial. I remember a recent case against a Negro in which the only Negro on the jury was one of those who voted for conviction and finally succeeded in persuading the others to bring in a verdict of guilty. I may add that in defending Negros I have seldom hesitated to accept Southerners. Frequently they have a more sympathetic understanding of Negro psychology, and will make allowances for conduct that a Northerner is less likely to condone.
The deliberations of a jury are supposed to be secret, but in the old Criminal Courts Building, which has now been torn down, it was possible to listen through the door of the jury room, and court officers and prosecutors occasionally availed themselves of the opportunity. This story was told to me by one of the court officers.
A man had been tried for some crime, and all the evidence against him was circumstantial. When the jury began to deliberate, the vote on the first ballot was eleven to one for conviction. The one was a stolid old German who insisted that he would never convict anyone on circumstantial evidence.
“But the judge told us that circumstantial evidence was just as good as any other kind,”the foreman said. The other jurors argued and pleaded with the German but he was adamant.
This went on for a long time. At length the old man turned to the foreman and said, “I suppose if my watch was found in your pocket, that would be circumstantial evidence that you stole it ?”
“Certainly,”the foreman said.
“Then go over and look in your overcoat pocket.”
The foreman walked over to the rack where the coats were hanging, put his hand in his pocket, and drew out the watch that the old German had dropped in some time before.
“I suggest that we take another vote,”the foreman said. This time the count showed twelve for acquittal.