Overweight Jurors Are…

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How’s this for a race-neutral reason to strike a black juror?

I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.

So said the prosecutor in Seth Dolphy’s 1997 New York trial on drug, weapon, and assault charges, and the trial judge was fine with it. Last Friday (PDF) the Second Circuit basically said hey wait a minute, that’s not Batson, and remanded to the federal district court to take another look at habeas corpus. Since the trial judge hadn’t given any serious consideration to the possibility that the “fat” explanation was a pretext, the court said, the conviction should be overturned unless the state could somehow convince the trial judge, now eleven years later, that the prosecutor was sincere.

Where is it written?

On the off chance the prosecutor ever takes the stand, I have a question. You strike overweight jurors “based on [your] reading”? Where the heck did you read that?
I could have missed it, but I don’t know of any research on the attitudes of overweight jurors. (Or any that would answer the Second Circuit’s tart question, “Which side is favored by skinny jurors?”) There is plenty of research on how jurors and others judge overweight witnesses and parties, especially since “obesity litigation” against fast-food companies and others started to appear. In fact there’s so much of that research that searching for research about overweight jurors is difficult, but I’m not seeing it in literature reviews either.

Maybe the prosecutor had seen Stephen Adler‘s 1995 book/critique, The Jury: Trial and Error in the American Courtroom. Adler, according to Walter Olson’s review at the time, attributes to defense lawyer Gerry Spence the notion that “fat people lacked self-control and wouldn’t demand as much law-abiding discipline from others.” Heaven knows Gerry Spence can speak for himself, but whether he said that or not, I bet his actual thought process in voir dire is more subtle.

Regardless of where it came from, did this idea somehow make it into prosecutors’ voir dire seminars in the mid-1990s? If so, is it still there? If so, can we get rid of it?

Answers you already knew

Let’s drop the stereotypes just for a minute and think about how many different ways being overweight might affect a juror. I’m probably missing several, but here’s a start:

• Overweight people often believe they are discriminated against, and they’re right. This might make one angry at an authority figure like the state; another ready to punish a defendant; and a third perhaps ready to be a holdout, feeling distant from the rest of the group. Or it might have no effect. It depends on the juror and the case.
• Overweight people have more health problems than thin people. This might make jury service, with its long days of sitting still, more difficult for them. One might respond with energy and commitment, another with cynicism.
• Overweight people are, obviously, overweight, and thus may be less likely themselves to be biased against your overweight client, or witness, or self. (There’s a study here whose abstract suggests this.)
• Overweight people (at least overweight women, according to this study) often have impaired romantic relationships. A juror who had experienced this might listen differently to the evidence in a domestic abuse or sexual abuse case.

Most important, overweight people are people. Each one is as unique as you are. Each one’s story contains moments as life-shaping as yours have been. You knew this, of course — but if your “reading” about jury selection is full of garbage like “heavy-set people tend to be very sympathetic toward any defendant,” you may hesitate to trust what you know when voir dire begins. Don’t let anybody tell you that you never want overweight jurors, or that you always want them — or that you never or always want any other group. It just isn’t true.

Source notes: The Second Circuit opinion is Dolphy v. Mantello (PDF), discussed at the WSJ Law Blog and Althouse as well as here.