Justice And Jury Selection: Judging Jurors Before A Trial

Transcript

LYNN NEARY, HOST:

This is TALK OF THE NATION. I'm Lynn Neary in Washington; Neal Conan is away. For the second day in a row, lawyers questioned potential jurors in the George Zimmerman trial. Zimmerman is charged with second-degree murder for the shooting death of Trayvon Martin in Sanford, Florida, last year.

Zimmerman claims that he was defending himself against Martin while serving as a neighborhood watch volunteer. But Martin supporters say the teenager was unarmed and targeted by Zimmerman because he was black. The racially charged trial has dominated national headlines and has been the subject of intense discussion social media.

Such widespread attention complicates the jury selection process, which can play a crucial role in the outcome of any trial. We want to hear from attorneys. Tell us about a time when jury selection made a difference in your case. And if you had to do it over, how would you change the way you chose a jury? Tell us your story. Our number is 800-989-8255. Our email address is talk@npr.org. Or you can also join the conversation on our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, we'll talk "Game of Thrones" and unhappy endings. But first the latest in the George Zimmerman trial. Jury selection started yesterday, and Corey Dade has been covering the trial. He is a contributing editor for The Root and a former NPR corr. He joins us from Georgia Public Broadcasting in Atlanta. Welcome to the program, Corey.

COREY DADE: Hi Lynn.

NEARY: So help us put this in context. What - how much do we know, what do we know about these potential jurors?

DADE: Well, it started off, you know, the conventional wisdom was that these potential jurors would be asked a range of questions to sort of gauge their attitudes on issues that might affect the case. So their attitudes on guns, their attitudes on African-Americans, on Hispanics, whether or not they'd had experiences with crime. But so far most of the questioning has been centered on how much they actually knew about this case, and that's obviously to gauge how much they actually might have been influenced by the past 16 months of news reports and social media chatter.

So at this point they have 500 - a pool of 500 potential jurors to go through so that they can pick six.

NEARY: So can we assume from that that they're trying to find people who have not as much - know little about the case or haven't been engaging in social media and reading all the headlines?

DADE: Well, I think they want to strike a balance. Obviously the defense wants a type of juror that the prosecution does not. But I think between both sides, the ideal juror is someone who knows enough about the case but doesn't know so much to the point where they're influenced by what we've heard because there's so much information out there now that may not actually be admitted as evidence in the trial.

NEARY: And Corey, you've written a lot about how social media is playing out in this case and how it might affect the jury selection process. Can you tell us a little bit about that?

DADE: Well, social media is actually the vehicle that brought this case, the shooting, to national attention. The outcry, the national outcry about Trayvon Martin, who was unarmed, 17-year-old African-American male, being shot by Zimmerman - George Zimmerman who was 29 at the time - he went - Zimmerman went 44 days without an arrest, and that outcry through social media bubbled up to become national news.

And of course we know that that led to Zimmerman's eventual arrest. So from that moment, social media has always been involved in this. But over the last - certainly the last year, Zimmerman's attorneys have done something that's a little bit unprecedented, maybe, in legal cases. They have actively engaged in Twitter, Facebook and the Web to not only beat back sort of disinformation or myths about Zimmerman but to put out information about the evidence that they were collecting during this preparation.

This has given them an enormous platform, enormously effective platform, to shape the public's opinions about - or reshape in this case - about Zimmerman. And so the question at this point is whether or not that sort of blitz on the part of his attorneys has actually potentially influenced the opinions of these jurors.

NEARY: Well, what's interesting is that the judge has refused to put a gag order on this, right?

DADE: That's right, that's right. The prosecution has asked, four times, four separate motions with the judge, to put a gag order on both sides, and she's refused.

NEARY: And what about the prosecution? They can't use social media, is that right? Or what is their relationship to social media?

DADE: That's right, for the most part. Because they are the state, they are the government, they are prohibited from engaging in social media in the ways that the defense are. So they can not actively put out their opinions, they can't do anything to the extent that the defense can do. They can certainly go on social media and monitor traffic and pay attention to what's being said. But they can't have a voice.

NEARY: So what do both sides, both the defense and prosecution, what is it that they can glean from the conversations they might be tracking on social media?

DADE: Well, we saw it a little bit in the Casey Anthony trial. What we're talking about is it gives - it's almost jury consultation. It gives them a chance - the defense in this case - to use the attitudes, the opinions that are coming up on, say, Twitter, as a barometer for what jurors may actually be concerned about, what questions jurors may have.

And so they can throw all kinds of information about the case or evidence out there and see the reaction. And they use that reaction to shape their argument - and from the opening statement, all the way through the closing.

NEARY: Yeah, what about - the prosecution can't use social media, but what about Trayvon Martin's supports? They can, and they are using social media, too, aren't they?

DADE: They certainly are, and they're - you know, that side of it was the side that first went to social media and drummed up the national outcry to this. So Trayvon Martin's parents, certainly his mother has been very active on social media. The parents' lawyers have been very active on social media. And there's still an enormous sort of engine of support for Trayvon Martin and for - and against, rather, Zimmerman as being guilty.

So it certainly is going both ways, but I think from a legal perspective, the advantage, perhaps, is on the side of the defense here.

NEARY: And so just to go back to where we were in the beginning, are we hearing specific questions about potential jurors' use of social media and sophistication about social media?

DADE: Absolutely. Social media, the Internet in general, it's mainly focused on news. Do you watch the news? If so, how much? How do you take your news, through the Web, through the media - excuse me, through television, through newspapers? And then beyond that, if they find jurors or potential jurors who are frequent Internet users, then they start asking whether or not they know about Twitter, whether or not they're on it or Facebook.

NEARY: And also, this case is a very racially charged case. How are both sides addressing the issue of race during this phase of the trial, during this jury selection phase?

DADE: It hasn't come up yet. One of the potential jurors who was questioned today, it's an African-American male, he actually talked about the - the fact that he actually was quite disappointed and disapproving of the - what he called, sort of, the racializing of this case, certainly by the side of civil rights leaders like Al Sharpton and others who were calling for the arrest of Zimmerman.

Beyond that, the lawyers haven't really touched it, but certainly, certainly race has been sort of bandied about throughout the chatter over the last two days on social media.

NEARY: Yeah, so that is the racial aspects of this, you are seeing it very much if you're monitoring the social media on this trial?

DADE: Oh yeah, it's coming - it's flying in every direction.

NEARY: Yeah, and that's been right since the beginning of this, that this entire case became public.

DADE: Absolutely. You know, there was an interesting sort of turn of the tide to some degree. Initially when this shooting first happened, there was an outcry across races, across ages, you name it. It was really about, you know, parents in particular, identifying with the loss of a child in this kind of way.

But when civil rights activists got involved, when Al Sharpton got involved, there was a turn. Many people who didn't appreciate it or who have perhaps preconceived notions about civil rights leaders like Sharpton, didn't appreciate his getting involved. I think his presence alone gives the impression that this becomes a race issue, and that turned some people off.

NEARY: Corey Dade is a contributing editor at The Root. He's also a former NPR correspondent. He joined us from Georgia Public Broadcasting in Atlanta. Thanks so much for joining us, Corey.

DADE: Thank you.

NEARY: And joining us now is Karen Fleming-Ginn. She's served as a consultant in many high-profile cases, including for the prosecution team during the Timothy McVeigh trial. She joins us on the phone from her office in Verdix Jury Consulting in Walnut Creek, California. So good to have you, Karen.

KAREN FLEMING-GINN: Thank you so much.

NEARY: Let me start out with what we were just hearing from Corey about the Zimmerman trial and how big a role social media is playing in that jury selection process. Do you see that across the board? Is that starting to happen in other trials, as well? Or is this really kind of unprecedented in the Zimmerman trial?

FLEMING-GINN: Well, I think there's a lot of first in this case, and the sheer volume of social media that's being bandied about is something that's new, just because it is a high-profile case. But one of the things is that what I'm seeing is the need in every single trial, right up front, to tell people that they cannot engage in any kind of social media research, and will they have a problem with that.

And I've actually seen people get excused because they say right to the judge I cannot follow that order, I'm going to have to look, I'm just curious, I'm going to Google, I'm going to do this and that. So in that way things are different.

But the fact that they've raised $400,000 for the defense, that's a new thing. I haven't heard of that in ages. And then also the number of signatures on the petition. I read someplace after the shooting and before the arrest that there were 10,000 signatures an hour being generated on the media, on the Internet, to arrest George Zimmerman.

NEARY: Well, you know, widespread media exposure has always been something that lawyers have to be careful of when they're selecting a jury. So this just adds to that, it seems like, it just complicates matters even more.

FLEMING-GINN: It really does and it's difficult because all of a sudden you have a situation where people want to get on the jury, as opposed to the typical scenario, which is how do I get off, what do I say to get off. And so it changes the complexion because it's really difficult to ascertain why people want to get on the jury.

Is it because they have an agenda? Is it because it's sexy cocktail banter to have been - you know, to have taken part in this? Or is there some other reason? You just never know.

NEARY: Yeah, and is that new? Is that really a new phenomenon, that people are wanting to get on - that's never been there before?

FLEMING-GINN: Well, I think just the fact on a high-profile case, people are more curious and more interested than just your run-of-the-mill, you know, shooting in a large metropolitan city. You know, there's reasons that people want to take part in it. They want to get the inside scoop. You know, it's just - it changes what people are willing to do.

NEARY: Yeah, if you're an attorney, we want to hear about a time when a jury selection made a difference in your case. Give us a call at 800-989-8255. And we'll have more with Karen Fleming-Ginn after a short break. I'm Lynn Neary, and this is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary. This week attorneys in Seminole County, Florida, are working to assemble a jury for the trial of George Zimmerman. Potential jurors have filled out questionnaires and answered questions about their media consumption, their knowledge of the case and their impressions of the parties involved.

It's a delicate, strategic process, and the lawyers hope to learn everything they can before making their selections to seat the jury. So today we want to hear from attorneys. Tell us about a time when jury selection made a difference in your case? Our number is 800-989-8255. Our email address is talk@npr.org. Or join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Karen Fleming-Ginn is our guest. She has spent the last two decades as a jury consultant. She's worked on some high-profile and highly sensitive cases during that time, including the Timothy McVeigh trial. We're going to take some calls now. We're going to go to Stuart(ph) in Lansing, Michigan. Hi Stuart.

STUART: Hi, good afternoon.

NEARY: Good afternoon. Let's - go ahead.

STUART: I was a defense attorney for 17 years, then I became a prosecutor. And my first trial was a homicide, and they sent an experienced prosecutor with me. And at one point in the jury selection, he turned to me and said get rid of the teacher. And I said why? Because I'd always liked to have teachers on my juries. He said because we want the juror to look over there and see somebody who participated in a homicide. We do not want a juror who's going to look over there and see a 17-year-old kid. So I kicked the teacher and won the case.

NEARY: That was a good move, then, and you wouldn't have...?

STUART: Oh yes.

NEARY: And you're saying this is early in your career, so you didn't really, you didn't get that at first?

STUART: Well, it was - you know, I'd been a trial lawyer for 17 years, but I'd always been on the other side.

NEARY: I see, I see, yeah. Well that - so what did you learn from that?

STUART: I learned that I had to switch my mindset in picking juries in order to not look for people who are going to go out of their way to find reasonable doubt.

(LAUGHTER)

STUART: I guess that's the best way to put it.

NEARY: All right, well thanks so much for your call, I appreciate it.

STUART: OK, sure thing.

NEARY: We're going to take another call. We're going to go to Vito(ph), who's calling from Cleveland. Hi Vito.

VITO: Hello, (unintelligible).

NEARY: Hi.

VITO: How are you today?

NEARY: I'm good. You go ahead now.

VITO: Yes, first I want to say I'm a huge fan of yours, and I love the show.

NEARY: Oh good, I'm glad you love the show. I do, too.

VITO: And also, Lynn, to the gentleman from Michigan that just called, I just want to let him know I love when the Ohio State Buckeyes beat the Wolverines.

(LAUGHTER)

VITO: Nothing makes me feel better. But in regards to the case, I'm Italian, Vito Corleone, and many times we have - you know, we've had a certain case where somebody left the gun and took the cannolis, and they left the actual piece of evidence there in the vehicle. And I had to make sure I got all Italians on that jury or it was going to be a situation that could have got out of control.

NEARY: All right, well thanks so much for your call, Vito, and I'm going to ask Karen to respond to something you were saying. He brought up the question of race, Karen, and that's - I know you've dealt with trials where race is a big issue. The Zimmerman trial is very high-profile, very racially charged. How do attorneys deal with the question of race during the jury selection process?

FLEMING-GINN: Well, one thing is that - what I don't know is if they addressed it in the jury questionnaire. My guess is they did because that can be a place where people tend to give their opinions a little bit more freely than if they have to actually verbalize them to a judge sitting up there in a black robe. But I haven't read anything about questions about race in the questionnaire.

But I would bet that they are in there. And some examples are: Have you ever had a problem with somebody of a different race? You know, do you tend to join social groups? If so, what are they? Do you contribute to the ACLU? Do you have any involvement in racial issues or research of something like that? I mean, there's just a lot - a stream of questions that they can try to get at people's, you know, familiarity and comfort level of racial issues.

NEARY: Tell us about a case you worked with that dealt with race and how you handled it?

FLEMING-GINN: Well, there's so many. I wouldn't even know where to begin. But one that got a lot of attention around here was the case of the Oakland Riders. And the Oakland Riders were police officers who were accused of profiling African-Americans in parts of Oakland and actually arresting them and beating them up.

And it became an incredibly polarized case racially and got a lot of attention around here, and it just became a matter of asking questions. And certainly familiarity does not necessarily mean partiality, but it's just a matter of digging deeper and finding out what people's views and attitudes are.

NEARY: Can you ever really be sure that you've got the right person on a jury, or you've gotten the right people on a jury I guess?

FLEMING-GINN: Well, you can't really be sure until the verdict. Nobody's got a crystal ball. However, it really comes down to asking questions and asking a lot of questions to really get at the heart of people's attitudes and beliefs. And it's not easy, and it's important to not rely so much on stereotypes but really, really keep digging.

NEARY: And do people ever try and fool you, and can you sort of suss that out, as well?

FLEMING-GINN: Absolutely, and again that goes back to jurors wanting to be on a high-profile case and saying that they hadn't read anything, they didn't know anything about it and come to find out, you know, they take two newspapers every day and watch the news six times or whatever the numbers are.

NEARY: Yeah. Let's take another call. Now we're going to go to Eddie(ph), and he is in Houston, Texas. Hi Eddie.

EDDIE: Hi. I'm a defense attorney in Houston, and one thing I wanted to make clear is that the process is so important that I tell my clients literally half the battle is won or lost at jury selection. And going back to what your guest just said, very often times, we do find ourselves, because we have very limited amount of time to get through voir dire, we find ourselves falling back on stereotypes and going against everything we've ever been taught about don't read a book by its cover, et cetera, et cetera.

Conventional wisdom, sometimes - as an example, one of my cases would tell you - I had a young, attractive female who was accused of assault - would tell you don't put other young, attractive girls on that jury because they're generally not sympathetic to each other. So I picked an older, middle-aged woman who turned out to poison my entire jury, and the case went against us.

But understand that in most cases, we don't have days to go through these jury questionnaires and all day to talk to the jurors. They give us roughly a minute, sometimes less, to a minute and a half per juror to try to suss out what this person believes and what their core belief system is. And it's very, very difficult to do without falling back on stereotypes and conventional wisdom.

NEARY: Yeah, what did you learn from that situation that you had there, where you found out afterwards, I guess by polling the jury, you found out afterwards?

EDDIE: I speak to all of my jurors after every, every case, every case I've ever tried, and I've tried over 50. It's essential to speak to them afterwards, I feel, this is my personal opinion, because it will bring that to the fore. And what I learned from that case is what, you know, they teach us at every CLE and every conference that we have, is you have to get the jurors to start talking more.

And that's the key is if you can get them to start talking and expressing their opinions and get them to engage you, then you can find out OK, is this somebody who I thought was going to fall into a certain stereotype but believes something entirely different, or does not? And a lot of time that rides on the judge. The judge will only give you half an hour or an hour to cover a panel of, you know, 24 to 60 people.

NEARY: Yeah, thanks so much for your call, Eddie, that was very interesting.

EDDIE: Thank you.

NEARY: And Karen, let me follow up. Just, you know, one of the things that I'm getting from this is that you have to be a pretty astute judge of character, it seems to me. And how do you develop that skill? I mean...?

FLEMING-GINN: Well, again it sounds - I sound like a broken record, but it goes back to asking the right questions. And what's tricky and what the last caller just mirrored is that sometimes you don't get a lot of time to do that. And you can't just start in with hey, how do you feel about the death penalty, or, you know, are you racist? You have to really kind of massage the issues and get some comfort, you know, socially with the person that the attorney's talking to.

And it's very, very tricky and especially when there's time limits, and there typically are, less so in a high-profile case, but that's a giant issue.

NEARY: Yeah, all right, let's go to John(ph), he's calling from Princeton, New Jersey. Hi John.

JOHN: Hi, thanks for taking my call. I just wanted to add to the last caller said if it - one bad juror can taint the whole pool. So it becomes incredibly important. But what I always find, I do civil law, I do a lot of civil defense now, I used to do some civil plaintiff side, is that when you start running out of challenges, and you get down to the last two or three challenges, say, left, depending on what state you're in, or if you're in the federal arm.

And you're looking at the back of the room, and you're thinking wow, it's kind of tradeoff between what I see here and what I think I see in the back of the room and what I think I see of the limited information we've got. So that's where it gets really dicey. My personal horror story was when I picked a police officer in a whistle-blower case. I thought he would be very law and order, et cetera.

And I was getting - it was in that tricky area where I wasn't sure what was left in the jury pool. And it turned out the opposite, that he was just anti-plaintiffs in general no matter what. And he tainted at least, you know, two or three others, like, to see if we were progressing.

So that was a mistake that I made that you can easily make. So that's the lesson I learned was I tend to head toward more neutrals. Now, I do less stereotyping. And I tend to - I'd rather get a neutral that I can move once they get on the panel than take someone who's already, you know, in a corner before they get on the panel.

NEARY: Yeah. And so I guess Karen said before you really don't know if you've picked the right jury until the decision comes in, and it goes in your favor. But have you sort of finished with jury selection ever and thought I did it this time, this is right and then...

(LAUGHTER)

NEARY: ...been proved correct or been proved wrong? I don't know.

JOHN: It's both ways. You'll second-guess yourself for years on things like that. And if you win, of course, you forget everything because perfect selection. But every time I've been surprised. Every time I've thought I had a sure thing or that I knew someone was against my side, I've been mistaken. It switches up. People change. Stereotypes don't really fit. So there's always that give and take. And you never really feel 100 percent convinced you nailed it, unless you win. If you get an 8-0 jury then you think did something right.

But most of us like to think that we did the work during the trial (unintelligible) in the selection at that point. So that's just vanity.

NEARY: Yeah. All right. Well, thanks so much for calling, John(ph).

JOHN: Sure. Bye-bye.

NEARY: And, Karen, are there some questions that you are not allowed to ask of potential jurors?

FLEMING-GINN: Well, a lot of times there's motions in limine that one side or the other brings that does create an area that is a no zone. In other words, they can't touch certain things. But typically, there are not serious limits. However, you also have to be careful because you don't want to alert the other side that you've got a juror who you think is going to be 100 percent in your favor. So you have to delicately balance that.

NEARY: Gosh, it's such a cat-and-mouse game. And, you know, the last caller just said, you know, he's looking at the back of the room to see who's coming up and trying to make a guess before you even have a chance to question them. So are you looking at things like body language? I mean you have to make some decisions just based on visuals it sounds like he was saying.

FLEMING-GINN: Exactly. And often, you don't know what the order of the people are going to be called in. So it's a real guessing game.

NEARY: We are talking about the process of jury selection. Our guest is Karen Fleming-Ginn. She's a jury consultant at Verdix Jury Consulting in Walnut Creek, California. And you are listening to TALK OF THE NATION from NPR News. And we are going to take a call now from Janet(ph). She's calling from Farmington Hills, Michigan, I think it is. Janet?

JANET: Hi. Yes. That's right. I've been an attorney for many years and had one really significant case early in my career which was a high-profile case. And we were lucky enough to be able to get the help of the National Jury Project Midwest and a couple of amazing jury consultants at the time. And this was back in the late '70s. It was a woman - the case was about a woman who killed an abusive partner, and at that time, there was not a whole lot that any of us really knew about how to handle a woman self-defense case.

And so we had held, really throughout the trial that, you know, they did a survey ahead of time in the small community where the case was tried. They also helped us with the actual jury selection. And what was wonderful about the jury consultants at that time was we went in and I had a co-counselor on the case. He went in with the assumption that we were going to want to have on this case people whom themselves have been in some way related to domestic violence as victims at least.

And the consultants told us that was absolutely the last thing we wanted. We actually were looking for an ideal juror they said at the time, and that was a traditional male and particularly someone who had been in the military who understood about self-defense. And so we - anyway, we had a long jury selection process. We had a great judge, and I think it was mentioned earlier that the judge that you have makes a huge difference in jury selection. We had a great judge, who gave us a lot of leeway.

We filed motions ahead of time, and were able to get actual in-chamber selection for part of the process because we had delicate questions to ask each potential juror. So I mean that was pretty unheard of at the time in the late '70s. And we were very fortunate to have them. They were instrumental in helping us get an acquittal for our client.

NEARY: And why did they say that a victim would be the last person you would want as a juror?

JANET: Yeah. They said that - for one thing, if you have a victim who has herself - and I say her because most of the time it is a woman that's the victim of domestic violence, at least at the adult level. And so if she has herself been a victim and then has been able to get out of the situation, she may or may not but you don't want to take the chance. She may be even more judgmental to somebody who for one reason or another stayed in a relationship, had to stay in the relationship, went back to the relationship, which is what we had in our situation, sometimes willingly, sometimes unwillingly because she married this guy a number of times. It was quite an incredible case. But, you know, you just - because you couldn't take the chance that that judgment - that extra judgment would be there.

NEARY: I see. Well, thanks so much for your call, Janet. Appreciate it.

JANET: Thank you. Thanks.

NEARY: And, Karen, I'm curious, Karen. Have you ever been on the jury?

FLEMING-GINN: No.

(LAUGHTER)

NEARY: They would never pick you, right?

FLEMING-GINN: I don't know if either side will ever pick me.

NEARY: Yeah. Yeah.

FLEMING-GINN: I've been around the process so much. But on that line, I will say that there - it's more common now for attorneys to actually be seated on juries. I've - in the last probably dozen cases I've worked on, there's been maybe three or four attorneys who were actually seated on juries.

NEARY: Yeah. And just very quickly, what advice would you give to the attorneys in the Zimmerman case? Any words of advice there?

FLEMING-GINN: Well, you know, again, I don't know what the judge is going to let in and not. I am concerned about the amount of social media that the defense has engaged in, and I don't know if that will come back to bite them or not. But it's just - it's very unusual. Like I said, there's many firsts in this case.

NEARY: Yeah. Well, thanks so much for being with us, Karen.

FLEMING-GINN: My pleasure.

NEARY: Karen Fleming-Ginn is a jury consultant. She served as a consultant in many high-profile cases, and she joined us on the phone from her office at Verdix Jury Consulting in Walnut Creek, California.

After a short break, we'll talk about the betrayal we feel when our favorite book or TV show kills off a beloved character. And we'll try stay away from spoilers. Stay with us. I'm Lynn Neary. This is TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.