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THE DARK SIDE: I really do love an acquittal

David Ziemer

David Ziemer

My friend Nicole got called for jury duty a little while back.

Naturally, she asked me for advice on how to avoid getting picked to sit on a jury.

“Should I tell them that I believe anyone charged with a crime must be guilty?” she asked. “Or should I say that, if the defendant doesn’t testify in his own defense, I will believe he is guilty?”

“No, no, no,” I replied. “You’re going about this thing all wrong.”

I told her, “There will be ten other prospective jurors who will all say the same things, with the same objective. Then the judge will browbeat all of you until you make forced concessions that you will be impartial.”

“None of you will be struck for cause,” I explained. “The defense attorney will only be able to get rid of a few of you using peremptory strikes, and there will be a good chance you’ll wind up on the jury.”

“So what do I do then?” she asked.

“Go the opposite route,” I advised. “Say, ‘I do love an acquittal.’ You’ll be the only one to say that, so even if you don’t get removed for cause, the prosecutor will strike you first.”

But afterward, I started to question whether my perceptions of the voir dire process were still valid. They certainly were back in the day.

For a good example of the way courts used to “rehabilitate” patently biased jurors, resulting in sheepish concessions that the jurors can be fair, see the Wisconsin Supreme Court opinion in State v. Ferron, 219 Wis.2d 481, 579 N.W.2d 654, 656-657 (1998).

The exchange in Ferron provoked the Supreme Court to remark, “In attempting to ascertain the sincerity of a prospective juror’s willingness to set aside an opinion, bias or prior knowledge, circuit courts should refrain from badgering the prospective juror, or from giving the appearance that it is doing so.”

Of course, not all courts were like this. I know one judge in Milwaukee County who has probably never once had to strike a juror for cause on an attorney’s motion. After the voir dire is complete, he calls the attorneys up to the bench and announces he is striking all the jurors who are arguably removable for cause.

As a general matter, that’s great. It beats having to use a peremptory strike just to get rid of some juror whose husband is a cop, whose three brothers are cops, whose father is a cop, etc.

But sometimes, it’s not so great. As a defense attorney, I want the prospective juror who was once arrested just because he was trespassing in a stranger’s front yard, naked and tripping on LSD.

But this judge removed that particular prospect with no explanation except, “I’m removing juror number 12; he’s a goofball.”

In any event, it has been a long time since I’ve seen a voir dire transcript as bad as the one in Ferron. I expect circuit court judges have taken the Supreme Court’s caution to heart, and no longer pound admissions of feigned impartiality out of jurors the way they once did.

So, perhaps my advice to Nicole wasn’t as sound as it once would have been.

Still, I have to think that any juror who says, “I do love an acquittal,” one way or another, will not have to hear the case.

Of course, I really, really, do love an acquittal. Most folks called for jury duty probably can’t declare that with as much enthusiasm as I can. I imagine there are even some people who would be lying if they said that; and that would sort of defeat the point of voir dire, wouldn’t it?

Maybe I should have told Nicole just to answer the questions truthfully.

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