Tahlequah Daily Press

March 20, 2013

Jury selection varies by attorney, court

By JOSH NEWTON
Staff Writer

TAHLEQUAH — When attorney Gayle McNamara came to Cherokee County from Los Angeles several years ago, she quickly realized there was a world of difference between the legal systems here and there.

Back in Los Angeles, McNamara said, courts handled hundreds of trials every day, many of them dealing with a great amount of money. When money was a prime consideration, attorneys on either side would often spend large sums on consulting firms to research and develop tactics for jury selection.

“They will actually go to the extent of doing a dry run – picking a jury – for the upcoming trial to give the clients and the attorneys a chance to get a preview of how it might go,” said McNamara.

But in Cherokee County, McNamara – now an attorney with the nonprofit Cherokee County Legal Services – hasn’t seen a case yet where a consulting firm was hired to help with jury selection. Here, things seem to be done on a much smaller scale, and attorneys have their own methods of picking the right jurors.

Trial dockets here are also held only a handful of times each year.

Weeks before scheduled jury dockets in Cherokee County, Court Clerk Shelly Kissinger’s office will check to see how many potential jurors are requested – which is typically around 300, or up to 350 if the docket includes murder cases.

The Administrative Office of the Court will then use a computer program to randomly pull that number of potential jurors. While many people believe those selections are still made from voter-registration records, they are actually chosen through records of driver’s licenses, Kissinger said.

Each potential juror will receive a summons, along with a letter that can be completed by a particular date if the individual feels he or she should be excused from jury duty. Some will be excused by the judge before the docket begins, but others will be required to show up at the courthouse at the start of the docket.

If potential jurors end up in a courtroom, they’ll be subjected to what the legal system refers to as “voir dire,” which could include a series of deeply personal questions that touch on previous criminal activity, family matters, career issues, and a host of other subjects directly or indirectly related to the case or the ability to serve on the panel.

In some instances, a judge may begin the process by asking his or her own questions of potential jurors; then, the attorneys – in a criminal case, the prosecutors and defense attorneys – may be allowed to ask questions of the jurors. Throughout the process, men and women can be excused from the jury pool for various reasons.

District 27 First Assistant District Attorney Jack Thorp believes voir dire is the most important part of a jury process.

“When picking a jury, you want jurors who can collaborate to find a verdict, to find the truth,” said Thorp.

When Thorp first began his legal career, he spent little time talking with and asking questions of the panelists, he said.

“I had a lot of real short voir dires, and I had a lot of not-so-great verdicts,” said Thorp.

But over the years, he began to study the process and developed his own method with a common set of questions for the jury. Depending on the facts of a case, he’ll then modify or add to the list of questions.

“Jurors want to know what they are doing is important,” said Thorp. “I treat voir dire as probably the most important part of the jury trial.”

Thorp developed his own voir dire process that incorporates a “positive” and “negative” approach to each potential juror. He keeps notes, and will ultimately rank jurors.

Other attorneys have their own ways of doing business.

“Attorneys have a lot of different attitudes about picking a jury,” said McNamara. “Some attorneys don’t think there’s really any scientific way to do it; they simply use their gut feelings and their intuition and their understanding about people.”

McNamara was able to serve on three juries before she became a lawyer in California, and she uses that experience to her advantage. In Oklahoma, attorneys are automatically excused from serving as jurors, she said. Attorneys who went into that career early in life may never know what it’s like to sit on a jury.

“I’ve learned that stereotypes and assumptions are sometimes true, but they’re frequently not,” said McNamara. “How do I pick jurors? I spend as much time as I can listening to them. I ask open-ended questions, and I encourage the jurors to talk about their attitudes, their feelings regarding the issues of the case, and I try to listen to what they’re saying without any preconceptions.”

McNamara’s goal is to always find someone who is “fair.”

“A lot of people are under the impression that one side or the other is stacking the jury – and in a sense, you are, in that you are looking for jurors who will understand your client’s situation,” she said.

“A prosecutor wants somebody to understand how important it is to fight crime; the defense wants a juror who’s going to understand how it’s possible for an ordinary person to get into this sort of situation. But I truly don’t think either side is trying to do anything other than obtain a fair trial. Maybe I’m idealistic, but my experience with the trial system is that it’s extremely effective.”

Attorneys use voir dire to eliminate jurors who might be prejudiced to the situation of the case, or toward someone involved in the case. This typically leads to jurors being asked about their friends, their family, and their personal lives and histories.

“An attorney is looking for bias, and bias is an extremely personal thing,” said McNamara. “Our Constitution guarantees people a trial by jurors who don’t have preconceptions. To find a fair jury, you have to probe a little bit into the sensitive areas. It’s always done in a way that respects the juror, but the purpose is to uncover either intentional or subconscious bias the person may have against the client, or the attorneys, or the people involved, to guarantee the defendant gets a fair trial. We all have strong feelings about one thing or another, and sometimes if we’re deeply committed, that can color our objectivity.”

After questioning of the potential jurors ends, attorneys from both sides may gather with the judge and pick the final jury that will hear the case. Thorp said each side is granted a certain number of “strikes” to eliminate potential jurors from the list. For a homicide case in district court, it’s nine strikes each, or five each in a non-homicide felony case, he said.

Processes may differ by judge, and based on where the case is being tried, whether it’s at the local level or in federal court.

McNamara – who represents clients in both civil and criminal cases – believes the jury selection process may not be perfect, but ultimately presents an “ideal and unique situation.”

“You have a group of people who don’t have an ax to grind, probably for the first time in their lives,” said McNamara. “This is not their work, it’s not their relatives, it’s not their friends. They don’t have any personal stake in the outcome, and I can’t think of any other situation in life where you are in that kind of an environment. My experience, both from being on a jury and from seeing the outcome of the jurors’ deliberations, is that it creates about as perfect a way to get to the bottom of the matter as exists, which isn’t to say there aren’t injustices. We know that innocent people are convicted from time to time, but I can’t think of a way to prevent it that would be any better than what we have right now.”