Opinion

Let informed people be jurors

The Derek Chauvin trial highlights the perverse incentives of jury selection

Jury selection is well underway in the trial of former Minneapolis police officer Derek Chauvin for his role in the death of George Floyd last summer. A week and half into the process, seven of the 14 jurors (12 plus two alternates) have been selected. Two previously seated jurors were dismissed Wednesday after admitting they found it difficult to be impartial in light of the city's $27 million settlement with the Floyd family in their civil suit.

Though in some ways unusual because of the high profile of this case, the long and onerous process by which the Chauvin jury is being chosen is a window into broader dysfunction of jury selection in the United States. In theory, we are tried by a jury of our peers. In practice, however, juries are significantly selected for ignorance using standards that are increasingly unworkable in our omnipresent media environment, and the strain of jury duty is borne disproportionately by people who often don't want to be there and can't afford it. This is hardly conducive to justice.

Let's begin where the selection process begins: the jury pool. These are all the potential jurors, the larger group of people from whom the final jury will be chosen. The starting size of the pool in the Chauvin trial hasn't been revealed, but it is reportedly large. In a headline-making case like this one, the pool can number in the thousands. More than 1,200 people were in the jury pool for the Boston Marathon bombing trial in 2015, and over 9,000 were called for the trial of James Holmes, who was convicted for the 2012 mass shooting at a movie theater in Aurora, Colorado.

Some in the pool dodge service; some are given exemptions for age or medical conditions; and some are allowed to postpone. For those who remain, questioning begins. Attorneys for each side can strike an unlimited number of potential jurors "for cause," which means getting rid of those the judge agrees won't be impartial. On top of that, each team gets a limited set of "peremptory challenges" (in the Chauvin trial, it's 15 for the defense and nine for the prosecution) to exclude others without stating a reason.

Potential Chauvin jurors were sent a 16-page questionnaire in December. It probed their knowledge of the case, their media habits, political views (this isn't a death penalty trial, but if it were, anyone with even slight moral qualms about execution would be rejected), hobbies, religion, and more. I was startled by the sheer length of the form and reached out to Ilya Somin, a law professor at George Mason University whose writing on jury selection caught my eye.

Somin told me a questionnaire like this isn't typical, but its attempt to suss out jurors' knowledge and beliefs is standard. A "common problem" in our jury system, he said over email, "is the exclusion of potential jurors not because they know anything about the specific case" — a primary concern with the Chauvin trial because of the extensive media coverage of Floyd's killing and the protests and riots which followed — "but because they have general background knowledge that might be useful" in deliberation.

"Thus, as a practical matter, it is relatively rare for, say, a lawyer or legal scholar to get on a jury, especially if the issue is relevant to their areas of expertise," Somin explained. "Ditto for a scientist in a case involving scientific evidence," or a doctor in a medical case or an accountant in a trial concerning finances. Our jury system's "efficiency," as Mark Twain snarked in 1873, "is only marred by the difficulty of finding 12 men every day who don't know anything and can't read."

Twain was only exaggerating a little. The Chauvin questionnaire, for example, inquires if jurors have been to a Black Lives Matter protest and, if so, what their sign said. It asks if they have martial arts or chokehold training or experience in law enforcement, criminology, forensics, health care, mental health care, or civil rights issues. Any juror answering "yes" will probably be dismissed for cause.

In fact, manuals on jury selection outright advise lawyers to exclude anyone who could play the Henry Fonda role in 12 Angry Men, reasoning with fellow jurors and guiding them to a conclusion. "You don't want smart people," a Philadelphia prosecutor once explained, because they'll "analyze the hell out of your case."

But shouldn't we want jurors to analyze the case? This is what's wrong with habitually excluding people over relevant knowledge: Those people might render better judgments because they're better-informed. Systematic dismissal of the comparatively knowledgeable can disadvantage justice and produce juries that don't reflect the local community.

So what would reform look like? It would mostly happen at the state level, Somin told me, though Congress could make changes for federal courts, too. One option is tweaking which list we use to source potential jurors: Choose them from voter rolls instead of licensed drivers, the thinking goes, and you can get people with a greater sense of civic duty. (The counterargument is that risk of getting jury duty will lead some people to decide not to vote.)

Somin takes a realist approach, arguing that jury duty should be voluntary, not mandatory. It might require a constitutional amendment, he explained in The Washington Post several years ago, but this is "exactly what we do for other forms of public service," including other "vital jobs in the justice system." Population sampling and pay incentives could be used to ensure voluntary juries are demographically representative of their area.

And speaking of pay, Somin also suggests fully compensating those who serve. Current jury pay is absurdly low: Chauvin trial jurors will be compensated the Minnesota rate of $20 per day, or $2.50 an hour for an eight-hour day. Federal jurors usually make $50 a day, which works out to $6.25 an hour, a dollar below the federal minimum wage. Pay this low unfairly imposes the cost of jury trials on an unlucky few instead of the whole citizenry. It also creates a strong incentive to avoid jury duty or perform it without due care to speed the return to normal life.

Beyond a voluntary system with decent pay, I also wonder if capping the size of jury pools could be useful. A 2015 Associated Press report on a murder trial in Louisiana said an initial jury pool of 200 people was reduced to 80 by the usual exemptions. Those remaining were considered too few to assemble a jury. Lawyers have a right — a duty — to pick the best jury they can for their client, but that degree of selectivity beggars belief.

In a more recent case, the exemptions combined with the pandemic reduced a jury pool of 150 to 19, well below the far more reasonable minimum of 31 people the court wanted to pick 12 jurors and one alternate. For all but the most unusual trials, like Chauvin's, a post-exemption jury pool of 30 or 40 seems like enough to get a good community cross-section. It might even force attorneys to keep a few more knowledgeable jurors around.

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