So I just got excused for cause.

Now that I am excused, I can reveal the following: this was an attempted murder case with a gang enhancement. It was tried down the hall from the courtroom where they are retrying Phil Spector.

After I got called into the box and revealed that I was a current criminal defense attorney and (after follow-up questions) a former prosecutor, they called me to sidebar. They probably thought, correctly, that some of my responses to their questions would pollute the panel.

I’m pretty sure the DA and the PD stipulated to my removal for cause. What tipped it over? Hard to say. I said that despite my current job and my old one that I would follow the instructions and thought I could be fair. Probably what tipped me over was my comment on witness credibility. They’ve been asking the jurors whether they think cops or gang members are more likely to lie than other witnesses. I said, truthfully, that I would judge each individual witness on his or her own merits, but that I thought cops and gang members, as groups, were part of cultures that condoned perjury and in some cases demanded it. The DA didn’t look like he was happy with that nuanced approach. And the PD didn’t look like he was happy with my response that in my experience defendants often lie, reinforced by my experience that most of my clients lie to me. They discussed it at sidebar for about fifteen seconds and then kicked me.

Perspectives on the jury selection process, seen from the other side:

1. At least here in California, state judges allow attorneys to conduct voir dire themselves after the judge has gone through stock questions. It’s only in part to probe jurors for biases. It’s also a chance for the attorneys to trot out the themes of their case. The prosecutor was asking people if they agreed with the aiding and abetting rule that someone could be responsible even if they didn’t themselves pull the trigger. The defense attorney was asking jurors whether they could accept that a defendant is only guilty of aiding and abetting if the government proves that they knew what was going on and intended to assist with the crime. In short, they were pre-conditioning the jury to believe in their arguments.

As a practitioner I’ve found this useful. As a juror, it seemed obvious and faintly insulting. Next time I will use a lighter touch.

One part of it was ridiculous — the judge let them ask questions of the 12 in the box, and then each time they exercised a strike and brought in a new juror, the judge let them ask questions of that new juror over again. This was extremely tiresome. The other jurors didn’t like it.

2. I was reminded, again, of how important it is that the participants sound like they are there for a purpose, and not sound like they are phoning it it. The judge droned in a monotone through a lot. It’s hard to focus on that. Sometimes the lawyers sounded like they were just going through a checklist of points and not engaging with the responses. That’s not only a lost opportunity. It’s also suggesting to jurors that they are a mere formality rather than essential participants.

I think many people are motivated by, among other things, self-image. Jurors are no different. When we bring them in, we want them to feel like they are actually important decision-makers, and that they are there not as a formality but because we believe they are capable of figuring out difficult disputes and bringing common sense to bear. If you don’t sell them on that self-image — “I have an important job here, and part of it is to reserve judgment and pay attention” — they’ll pick another one, like “Whee! Look at me! I’m Henry Fonda!” or “This is a waste of my time; they don’t respect me” or “I’m the bulwark between The Man/The Hordes and freedom/society.”

Even though I didn’t get to see any evidence or argument, it was a valuable experience as a trial lawyer.

Last 5 posts by Ken

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