Attorneys reveal why they eliminate potential jurors

UT employees, engineers, police officers and lawyers among those attorneys don't want on jury.

By Katie Humphrey
AMERICAN-STATESMAN STAFF
Tuesday, May 30, 2006

The most important part of any criminal trial, lawyers say, isn't the compelling testimony or the dramatic opening statements and closing arguments. Sometimes, they say, it's not even the facts of the case.

It's who sits in the jury box.

And depending on the case, engineers, police officers or even anyone who works for the University of Texas won't be there. Assembling a jury, a process that is far from scientific or methodical, often brings out the quirks of trial lawyers who try to evaluate which of the strangers on the panel would be least likely to rule in their favor, and then eliminate them.

"You win your case during jury selection," said Robert Phillips, a defense attorney who has been practicing for more than 20 years. "It's virtually over after the jury is picked."

It is during voir dire � the legal term for the jury selection process � that both sides first outline their arguments to prospective jurors and take their only chance to weed out people whose personal biases and opinions could lead to a conviction or an acquittal.

In a Travis County burglary case, for example, prosecutors struck the only two potential jurors who were black. The defendant, who was black, appealed his conviction, claiming, among other things, that prosecutors had been racially motivated when they dismissed those jurors.

But prosecutors justified striking the two because they worked for UT, according to court documents. At least two other potential jurors who were not black were dismissed because they worked for UT, according to the documents.

"It's been my experience that they are very anti-prosecution, that they tend to want to forgive people from any kind of criminal activity, that they are weak on finding people guilty, and even if they find them guilty, they tend to be very liberal on the issue of punishment," the unidentified prosecutor is quoted as saying of UT employees in the court opinion.

The Texas 6th Court of Appeals in Texarkana upheld the 2005 conviction.

But Edmund "Skip" Davis, the defense attorney in the case, said he doesn't agree, because lawyers tend to come up with "wacky" reasons for striking jurors. Striking someone just because they work for UT would eliminate a huge chunk of the potential jury pool in Travis County, he said.

"We have better logic in kindergartners than what the prosecutor used to support what appears to be entirely race-based elimination of black jurors," Davis said.

In any felony criminal case, each side may use 10 peremptory strikes to dismiss a potential juror for any reason other than race or gender. After that, jurors are struck "for cause," meaning there is some legal reason they could not hear the case, such as being unable to consider the full range of punishment.

Once the attorneys are content that they have struck everyone possible, the first 12 names remaining on the list become the jurors.

"As those 12 people are going up there, both sides are looking at each other going, 'Who are these people?' " Williamson County District Attorney John Bradley said. "They tend to be the people who stuck out the least."

It varies from case to case, but prosecutors tend to strike other lawyers, who read too far into the legalities of a case, and engineers, who pay so much attention to detail that one missing fact could mean losing a conviction, Bradley said.

Defense attorneys said they also pick jurors according to the specifics of a case.

"I like tattooed truck drivers on DWI cases," Phillips said. "I don't want Mothers Against Drunk Driving or people who've had loved ones killed or injured by drunk drivers. "

Striking someone from a jury simply because of their profession isn't unheard of, said George Dix, a UT law professor who teaches Texas criminal procedure. Defense attorneys tend to strike people who work in law enforcement; prosecutors often try to get rid of people who work in "helping professions" such as teachers or psychologists.

He's never heard of a prosecutor striking someone because they worked for UT, though.

"Now, if you were talking about the members of the faculty of the school of social work," that might make sense, Dix said. "But we have a lot of rednecks working here, too."

Rednecks working at UT? There must be some mistake. For several years, common perception had it that the scope of employment opportunities for rednecks in Texas higher education was limited to my alma mater in Lubbock and (yes, I'm bracing for the shower of hate mail) College Station. Perhaps Jeff Foxworthy is more of a cultural icon that I imagined.

Gee, The American-Satesman is writing an article about a 30 year old story that every newspaper has written about; must be a slow newsday.

A 30-year-old story and a 3-month-old case, one that came up on this forum almost immediately. Must be a REALLY slow news day.

As long as verdicts have to be unanimous, peremptory strikes should be available to both parties for constitutionally-permitted strikes. And place or choice of employment surely is one of those permissible reasons.

Fred, didn't you used to live in Austin?

Who is this nameless prosecutor who sees into the souls of UT employees?

Has a great big ol' gold college ring and wears Maroon Ties all the time???

I know who it is ... he's not an Aggie ... but he is a long-time court chief and a very successful trial lawyer and career prosecutor ....

I seem to remember being "taught" in law school that lawyers on both sides of the bar, criminal & civil, always strike folks, whose profession begins with "P". Not exhaustive but illustrative is this list: pimp, prostitute, professor, psychiatrist, physician, psychologist, plumber.... I used to tease my avian Air Force buddies that it included them as "pilots".

As for UT, seat of the socialist politbureau of Texas and fount of all left-leaning "knowledge", I must admit that were I working anywhere near UT, I'd strike 'em all too. There is a reason I nicknamed that college MLUT - "Marxist-Leninist University of Texas". I've often fantasized about driving to Austin & at the county line, installing a huge sign on the highway that reads: "Welcome to the People's Republic of Travis County" and has a big hammer & sicle on it.

That said, I always thought lawyers would strike other lawyers, but in 2002, when I had jury duty, I got stuck on a jury for a medical malpractice case. Now, they knew where I worked, but during voir dire, nobody bothered to ask many questions, so they made their strikes without knowing that I am the son of a physician. At the end of voir dire, one of the defense attorneys told us to tell the bailiff, if there was something we thought they ought to know. I went to the bailiff & told him, "Tell them, my father is a physician." When I ended up on the jury, I complained of it in the office & told how I'd told the bailiff of my father's profession. When asked which bailiff, I told them. My fellow prosecutors then chimed in with, "Oh, he's deaf. He probably thinks you said, 'I'm a musician.'" So I sat for 7 full days hearing the case, figured out by the depositions we saw that they'd sued everybody who'd ever even seen the decedent, then watched as the defense attorneys ripped the plaintiff's case to shreds on cross-examination.

I got "selected" to be foreman and worried that some on the jury would vote for the plaintiff's simply because a family member had died - after becoming septic after his first round of chemo for liver cancer. On the first vote: 1 vote for liability & 11 for no liability for Dr #1 (GP), 12 votes no liability for Dr #2 (oncologist). We came away thinking the only entity that had liability was the original rural hospital, into which decedent had been admitted when he felt bad & where he went septic. After the trial, I spoke to the defense lawyers & told them, I detected that a lot of the people testifying appeared to have been sued initially, then non-suited later. I was right. When I told them that we thought the rural hospital (now defunct) seemed to be the only entity responsible for the death, they told me, it was the only entity/person that was not sued. I also found out that during a recess, the district judge announced to the lawyers that juror-so-n-so is the son of a physician. I always wondered why I never got asked anything about that.