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Evidence Of The Frailties Of Jury Selection

People are stunned reading the details of the Peter Liang juror misconduct hearing but trial lawyers deal with the uncertainties of jury selection every day. Courtroom results are often dictated by how successful one side or the other is during jury selection.

Jury selection, also called voir dire, sounds simple, read a questionnaire, ask a few questions and then pick the people who will decide your client's fate. But make no mistake - - it ain't easy - - not even close. Any trial lawyer will tell you that there were some decisions during jury selection that they made which worked out well and others that they would like to have back.

Some trial lawyers, like Daniel P. O'Toole, of Block O'Toole & Murphy, will tell you that jury selection is the most important part of any case. "Getting jurors who are not only willing to hear your perspective but are predisposed to embracing your perspective, is critical to the success of any trial." No doubt today, lawyers like O'Toole are shaking their head reading about a recent Brooklyn decision upholding a jury verdict despite serious concerns about a juror who sat and deliberated on the trial.

What are we talking about? Former Police Officer Peter Liang was convicted of Manslaughter in the Second Degree for his role in the death of Akai Gurley. Liang was tried and convicted for shooting Gurley, an unarmed young father, in a stairwell in Brooklyn's Pink Houses, a vast public housing complex in East New York. Since the conviction the Brooklyn District Attorney has recommended that Liang not serve jail time, a recommendation that has engendered a great deal of controversy in the community.

Now, details are emerging that one of the jurors may have lied during jury selection. The juror, whose name will be withheld here, a retired carpenter, was asked whether anyone close to him had been accused of a crime. He wavered but ultimately stated "No." Earlier that morning during the jury selection process on a different case, this same juror was asked whether someone close with him had ever been convicted and he told that judge that his father had served time for killing someone. The two answers can't be reconciled, at least not by a trained lawyer.

On the Liang case, this same juror was asked whether he could be fair and impartial to an accused police officer and he said yes. Since the conviction, lawyers for Liang uncovered social media posts where the juror bashed the police and talked about cops killing innocent people. The point here is not to debate whether the juror intentionally lied or whether the conviction should be overturned (Incidentally, the trial judge upheld the jury verdict after a hearing). Rather, it is to discuss jury selection and how it can occasionally be very challenging.

Jury selection is a procedure where citizens from a particular area are selected to serve and decide a case. In New York a criminal jury will be composed of 6 persons for a misdemeanor charge and 12 persons for a felony charge. A civil jury is made up of 6 people. Criminal juries require a unanimous verdict. Civil juries require 5 out of 6 jurors to reach an agreement. During jury selection lawyers have an opportunity to question prospective jurors about their background to see if they can be fair and impartial on this particular case. The time frame to accomplish this can be very limited. For instance, some judges will require questioning of 12 people to be concluded in 15 minutes. Try learning about the background of one person in 15 minutes, never mind 12.

Lawyers are provided with questionnaires that are filled out by the jurors before they are questioned. These help the trial lawyer learn more about the jurors they are about to question. A trial lawyer, generally, is not afforded the opportunity to investigate jurors and most often accepts the responses provided as being truthful and accurate. In this case, at best, a juror was less than candid.

If the defense was aware of this juror's background and some of his social media postings, they likely would have used a challenge to remove the juror. A challenge is an objection to the qualifications of a juror. Challenges can be for cause where a judge will dismiss the juror because, on its face, this juror is incapable of being fair and impartial. In other instances a juror may be excused by a peremptory challenge. A peremptory challenge generally may be exercised for any reason. Trial lawyers are afforded a specific number of peremptory challenges based on the nature of the case. But sometimes, like in this case, a juror for whatever reason is less than forthright during the jury selection process.

The trial lawyer has to evaluate the answers provided by the juror, the background of the juror, the body language of the juror and the overall demeanor of the juror. The trial lawyer will also consider how a juror may relate to their client or their argument in deciding whether they think this juror is a good fit for the case. Different lawyers place greater emphasis on one or more of these factors.

There is no precise science to jury selection. Some lawyers utilize jury consultants and others make decisions based on their gut instincts. Some prospective jurors may have an interest in sitting on a jury and answer questions with that interest in mind. Frequently, jurors are looking for a way to avoid sitting on a case and will offer responses hoping they will trigger a challenge. The art of jury selection is challenging but critical to the outcome of a trial.

Cases like the Liang trial offer a glimpse into just how difficult it can sometimes be. Block O'Toole & Murphy is a law firm noted for its courtroom experience and skills. They have recovered nearly $1 billion in verdicts and settlements for their clients. You may learn more about the firm here or by calling them at 212-736-5300.