Now those jurors in the Lisa P case who had been excused due to hardship or other reasons, such as an already-paid vacation presently pending, or whatever, and after the rest of the panel had completed there jury questionnaire form, and such forms have been reviewed by both sides’ attorneys and the judge, the attorneys and the judge informally agree in the judge’s chambers which of the jurors have expressed themselves of definite bias and do the parties agree to their excusal, we now had a panel, and the process of jury selection begins. Generally, and in this case, 12 jurors are called in a random manner by the Court Clerk and re-seated in the jury box which is an area in the courtroom located perpendicular to the judge and the tables where the prosecutor sits and the defense table where the defendant and his/her attorney also sits. I have never liked the arrangement, as the prosecutor and his investigator, generally a police officer, are directly next to the jurors while the defense is seated further away. I have noted during the course of a trial, after every recess, prosecutors are trained to stand facing the jury as they leave and also when they return, smiling and acknowledging the jurors as they pass by in close proximity to the DAs, who stand there smiling at the leaving and returning jurors, and, in my opinion, for only one purpose: to gain a connection with the jurors. I hate it and it should not be allowed. There in State Court that’s the procedure of ingratiating oneself to the jury panel, but in the Federal Trial Courts the courtrooms are much larger and the Federal prosecutors are not permitted to conduct themselves in the manner of the State Prosecutors. I had objected to the procedure unsuccessfully, as the judges, like most of them, are former DAs, and the judges generally say there is nothing wrong with the procedure as it is just a sign of respect. On one case I grabbed the desk at counsel table normally reserved for the prosecution. The bailiff tried to make me move, grabbed my files and we ended in a tug of war, and I would not budge. The judge, who was new, asked me nicely to sit where defense counsel normally sits, and I gave in and moved. I have done some irregular things over the years and am reminded of one case where the DA was addressing the jury in such a manner that I could not see what pieces of evidence he was showing the jury, so I just plopped into one of the empty seats in the jury box and he then was forced to address the jury with me sitting with the panel. The location of defense counsel unnerved him, and broke his argument’s organizational presentation ending with a favorable defense verdict.
Anyway, back to the jury selection process, which in a major case, can take quite a while. I might mention in the old days I would often waive a jury when I thought a judge would go rule in my favor, but not anymore. In the old days a judge pretty much was assured never to lose an election, plus lawyers were reluctant to run against sitting judges for office. Not so today, where the job of being a judge can be precarious, particularly when the judge rules based on the acts and law, but unfavorably in the court of public opinion. It all started with Deputy DAs running against seated judges based on a “Law and Order” presentation. Even the State Supreme Court took a hit under the Chief justice’s Rose Bird Court in the 70s or 80s when the Chief Justice and 3 of her Associate Justices were removed from office by the voters due to death penalty rulings. In my opinion, today I think judges should be appointed for a life term, subject to removal for misconduct in office. Never thought I would take that position, but that is the way I believe today I never waive a jury anymore unless I have a guaranteed result. From my experience over the years, I think jurors come to the right decision a lot more than judges. The job of being a judge is too political these days in my opinion.
Anyway, with the help of the previously mentioned jury consultant, I agreed to accept the jury and so did the DA. I should have mentioned that in a life case, each side gets to excuse 20 jurors without a stated cause, called a peremptory challenge, as well as excusing a juror for cause. So the process takes a while to select the whole panel. In the Lisa P case, one of the alternate jurors was actually a deputy DA in the same office working under the authority of he elected DA who professed she would be fair and not lean favorably to the DA’s case, and even after heavy questions by me, stuck to those answers and the judge would not excuse her, which required me to waste a peremptory challenge to kick her off. The bottom line is each side is looking for a juror they feel comfortable with and neither side is really happy with the final selection. Maybe that is good, don’t know.
Next, the DA makes an opening statement outlining what he/she expects to prove, and in the present case, the DA laid out his case, basically the murder of Jim P’s mistress, Jennifer G, by stabbing to death and the suffocation by pillow of their 5-month old baby through DNA evidence connecting Lisa’s DNA on a bite mark on Jennifer’s arm matching Lisa’s DNA. Pretty simple forward presentation. Now it was my turn.
The defense can either make an opening statement immediately after the DA’s opening or can reserve its opening until after the DA rests. I have chosen both approaches depending on the case. This is where Jim Rasicott, the jury selection expert, was worth every dime he earned, as I had someone to kick around theories with, and we both agreed the worst part of the case was the death of the 5-month old child. A jury could perhaps forgive a wife for killing her husband’s lover, and if not a “not guilty,” then maybe a lessor degree of offense, such as manslaughter, which carried a substantially lesser sentence than 1st degree murder. So do I wait for my opening statement until the DA rests his case, or open right after the DA has made his statement? Either one would be OK in some way. This is from memory, and my recollection is I would wait until the DA rests and catch him off-guard
Enough for today…soon to the trial.
Marshall
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