The Myth of the Untainted Juror
Of course someone on the Chauvin jury attended a protest and wore a shirt. What is crazy is that we make jurors pretend they haven't been exposed to publicity.
It was inevitable, I suppose, if for no other reason than Derek Chauvin’s defense lawyers are highly skilled and highly compensated: someone has dug up a photo of one of the jurors attending a protest in Washington with a t-shirt that refers to the knee Chauvin placed on George Floyd’s neck.
The legal issues surround this are interesting, and complicated. It may turn on exactly what was in the jury questionnaire and whether or not the juror technically lied or simply was not asked the specific question that would have yielded a “yes” answer. Lawyers love this stuff- recall Bill Clinton arguing in his testimony in the Monica Lewinsky matter about the meaning of the word “is”.
This kind of thing happens all the time in high profile cases. In most cases, people want to avoid jury duty. But in high profile cases, some people are attracted to try and get on the jury, either to be a part of history or to specifically vote in favor of one side or the other. There was ample circumstantial evidence that some OJ Simpson jurors lied in voir dire, claiming they had never formed any opinion about the case from the massive trial publicity. Scott Peterson recently saw his death sentence reversed because one of his jurors lied about being a victim of domestic violence, clearly trying to get on the jury which- according to other jurors- she swayed decisively once she entered deliberations.
The weird thing is, instead of taking this problem on head on, our system holds up an ideal of a juror as empty vessel, which ironically makes it easier for unethical jurors to get onto juries in famous cases. We are, indeed, all familiar with the legal standard- the jurors should be a group of people who do not know the defendant from Adam (and don’t have any compromising relationships with the prosecutor or victim either), and who have no opinions whatsoever on the subject matter of the case so that they will consider only the evidence as well as whatever powers of common sense they bring into the jury room.
It’s worth noting that this was not really the original conception of a jury- the jury trial right is centuries old and originated as a jury of one’s “peers” (this language still appears sometimes in legal texts). The idea was you would be judged by members of the community you belonged to. In a small town or even a somewhat larger settlement, the jurors would have certainly known the defendant. But eventually, the notion of an “impartial” jury won out, and that language appears in our Constitution.
But what is “impartial”? It doesn’t actually mean “someone who has never heard about the case” or even “someone who has opinions regarding the subject matter of the case”. It means only “someone who is able to judge the case fairly on the evidence”. Many people are in fact able to act in a reasonably impartial manner despite holding personal opinions or even grudges. Think about referees and umpires in sports- there’s no evidence that, e.g., baseball umpires ever routinely called players they didn’t like “out” when they were “safe”. They were able to “call ‘em as they saw ‘em” even though they might very well have personal opinions about the participants of the sporting contests.
The basic problem here isn’t the concept of “impartiality”; it’s how lawyers translate it. Obviously, if you are a lawyer in any case, you want to question the jurors as much as you can, and look for any possible indication of bias or prejudice, both to protect your client’s rights and also, potentially, to set up an appeal. So as a result jurors are asked their views on every conceivable matter that could possibly be related to the case, and some that are not, as well as being asked whether they have seen publicity about the case and whether they have formed any opinions about the matter. When lawyers control the questioning (a practice that has come into disfavor in some jurisdictions), it is particularly bad, but even when they don’t, judges often don’t put their foot down and you end up with an overly long jury questionnaire.
And here’s the thing: in a high profile case, you aren’t going to find too many people other than the completely disconnected (who are unlikely to answer their jury summons anyway) who have not been exposed to pretrial publicity and who have no opinions about a big case like the George Floyd killing. What you will find, however, are people willing to lie and claim that. So a process that is supposed to select impartial jurors will tend not only to select partial ones, but partial ones who are highly unethical and willing to lie under oath. Indeed, if a juror is honest about exposure to pretrial publicity but capable of being impartial, one side or the other will almost feel compelled to object to the juror.
This is nuts. To go back to our Chauvin juror, as I said, the issue on the appeal will be whether he lied on his questionnaire. But while if a lie can be proven, that’s certainly evidence that he shouldn’t have been on the jury, it’s not really the right question to be asking about jurors generally. What we should be looking for is impartial jurors. If the system didn’t kick anyone out who actually admitted to being a human being who watches television and has opinions, maybe this juror would have felt comfortable telling everyone that yes, he did attend a protest and yes, he does have political sympathies for victims of police violence, but no, he’s willing to go where the evidence shows, and if the evidence presented in the courtroom does not establish Chauvin’s guilt, he’s capable of voting for an acquittal no matter what his feelings were about George Floyd’s death. Or maybe he would not be able to say that and would not be able to serve on the jury. Whichever is true, that is the sort of thing we should be trying to find out from jurors in high publicity cases.