Anatomy of a Self-Defense Trial Part 2

Picking the Jury

People who were interested had the chance to watch the Michael Drejka trial live on the streaming video website CourtTv. Don West, National Trial Counsel for CCW Safe, and I definitely were interested, and we watched as much of it as we could. This was the parking lot shooting case where Drejka got in an argument with a motorist over a disabled parking space — an argument that ended when Drejka shot unarmed Markis McGlockton after McGlockton violently shoved Drejka to the ground.

We knew we’d be recording a podcast and writing about the trial, and as we watched, we realized that most people aren’t familiar with the phases of a trial, and we thought the Drejka case provided a nice case study. Last week we used the Drejka trial as the foundation for a discussion regarding the importance of pre-trial hearings in a self-defense case. This week we’ll explore the importance of jury selection.

Don West told me that the more he tries cases (and he’s been doing it for well over thirty years), the more jury selection proves to be, perhaps, the single most important part of trial. If you ever stand trial in a self-defense shooting case, your fate will rest in the hands of a jury of your peers — but you’re certainly not guaranteed that your peers will all be like-minded individuals. Not everyone has the same feelings about the Second Amendment. Some people can’t imagine why it would be necessary for a civilian to ever carry a gun, and others may find owning a gun amoral. From that perspective, it’s easy to see why, particularly in a self-defense case, having the right jury is critical.

“A lot of jury selection is trying to divine what people’s attitudes and experiences are,” Don West says,  “and figuring out how those elements may impact their decision making process.” To accomplish this, lawyers conduct voir dire; it’s a French term that means roughly “to speak the truth,” and it’s used to describe the examination process used to determine a potential juror’s fitness to serve for a specific case.

In the digital age, part of the voir dire process can include conducting background checks on potential jurors. Sometimes what’s discovered in the public record or on public portions of a person’s social media can give deep insight into how a person feels about particular issues. We might be able to discover whether they are politically liberal or conservative. Do they have a hunting license? Do they like gun rights groups on Facebook? As a litigation consultant, I conduct jury vetting, and I offered my services pro bono in the Drejka case.

Things get more complicated, however, because lawyers don’t so much select a jury as they “deselect” a jury. As Don West says, “In jury selection, the lawyers do not get to choose they jurors they want. The system is designed to eliminate the jurors they don’t want.”

Imagine a long salad bar where each of the ingredients are lined up, single file, one at a time. The defense is on one side, the prosecutor’s on the other side. Each side takes turns, in order, knocking out the ingredients they don’t like. At the end, what ends up on the plate are only the ingredients both can live with. That’s what it’s like picking a jury.

Don West explains that there are two types of strikes that can be used to eliminate a juror: cause challenges and peremptory challenges. “If there is some part of the juror’s presentation that disqualifies them because they’re obviously biased or they might know some of the participants, or it’s clear they can’t be fair, they can be challenged for cause,” Don says. As for peremptory challenges, “those are the discretionary challenges that each side has to eliminate a juror for almost any reason, as long as it’s not based on race or religion, or something that would violate the Constitution.”

At trial, each side argues for or against jurors for cause, and the judge decides if a juror is to be struck. Peremptory strikes are used at the lawyer’s discretion, but each side only gets so many (often between three and six), and once you’re out, you’re out. Once each side has used all their strikes and there are enough people to fill the jury box, the process is over, and you have a jury of your peers.

“If it goes the way it’s supposed to, then each side is going to eliminate the jurors that they think favor the other side,” Don says. “At the end of the process, if there are good lawyers with good information, you look up and you see the people that are left are jurors that nobody wants.”

Don says that the obvious goal of jury selection is finding fair-minded jurors that can follow the law, “but obviously, if you can find somebody that you think favors your defense, as a defense lawyer you want to do everything you can to try to keep them.”

Jury selection can last several hours, and for homicide cases, they can last a day or more. Jury selection in Drejka lasted two and a half days because lawyers questioned some jurors individually about what they knew about the high-profile case. For the George Zimmerman case, jury selection took nine days.

It would be nice if, for every self-defense trial, we could seat a jury of all concealed carriers, but that’s not the way it works. If both sides have competent lawyers, the resulting jury will likely be a diverse group with wide-ranging views about guns and gun-rights. Often, I’ve heard self-defense advocates say, “It’s better to be judged by twelve than carried by six.” While that’s certainly true, the lesson for concealed carriers is that you cannot control who will be on your jury, and no matter who ends up serving as a juror for your trial, you’ll be forced to live with their judgement for the rest of your life.

  

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