The following was originally published in the July 2000 issue of Harper's Magazine.
From "How to Pick a Jury," a training tape made by Jack McMahon, a former Philadelphia assistant district attorney. To date the tape has figured prominently in the appeals of at least three capital convictions, which are now under review to determine whether McMahon made jury selections based on race, a practice ruled unconstitutional by the U.S. Supreme Court in 1986. At least twelve more capital cases also may be subject to review.
"Jury selection is probably the single most important part of the case. Preparation, evidence, witnesses, statements, don't mean anything unless you have a good jury. It's the most important aspect, yet it's the most unscientific, the most difficult to learn. All I can tell you is, play by certain rules and don't bend them and don't change them.
"When you have a juror that you obviously like, just by their appearance, you lead them, just as you lead them in a cross-examination. You don't say, "Ma'am, would your having been a victim of a crime have any effect on you?" because she may say, "Yes," and that's not the answer you want. So you say, "Ma'am, you indicated that you were robbed at knifepoint. Now of course that wouldn't have any effect on your deciding whether this guy is innocent or guilty, because that has nothing to do with your incident, right?" So she feels like a jerk and looks like a fool if she says, "Well, yeah, it might bother me." So, with a juror that you like, you want to put them in that situation.
"But if it's somebody that looks like they're a defendant themselves you say, "Well, sir, the fact that your brother was killed in a violent crime, that terrible trauma that happened to you might affect you in deciding whether this guy is guilty or not, right?" And he goes, "Yeah, it might, come to think of it." So it's important that you make it easy for the ones that you hate to get out.
"Another question you always want to ask is what section of the city they live in. I mean, let's be honest, people that live in North Philly have a different perspective on law enforcement and government than people in Somerton or Chestnut Hill. People from Mayfair are good, and people from Thirty-third and Diamond stink. Get to know that. I mean, Thirty-third and Diamond sounded like a nice neighborhood when I first moved here, but you don't want any jurors from Thirty-third and Diamond. So be familiar with the city.
"Case law says that the object of selecting a jury is to get one that's competent, fair, and impartial. Well, that's ridiculous. You're not trying to get that. If you go in there thinking you're some noble civil libertarian, you'll lose. You're there to win, and the only way to do that is to get jurors that are unfair and likely to convict. And if you think that it's some noble thing, that it's some esoteric game, you're wrong.
"Let's face it, blacks from the low-income areas are less likely to convict. There is a resentment of law enforcement, there's a resentment of authority, and, as a result, you don't want those people on your jury. And it may appear as if you're being racist or whatnot, but you are just being realistic.
"If you take well-dressed. middle-class people, you're going to do well. It's that simple. Look at their dress, how they act. Most jurors bring a book to read. Look at their book. If the guy is reading Karl Marx, you don't want him. Use your common sense. If the guy is reading a spy book or a police book, you're gonna like that person, because he's more philosophically attuned to conservative aspects.
"You do not want smart people. I wish you could ask everyone's I.Q.; if you could know their I.Q. you could pick a great jury. All the time. You don't want smart people, because smart people will analyze the hell out of your case. They take those words "reasonable doubt" and actually try to think about them. You don't want people who are going to think about your case and analyze it. You want people who are going to say, "If they say she did it, she did it." You don't want the town idiot either, but you want something in the middle - plain, simple people.
"I pick juries quick as could be. I don't hesitate, because I've got these rules down. You've got to stay with these basic rules.
"Another factor in selecting blacks is, you don't want the real educated ones. This goes across the board, all races. If you're gonna take blacks, you want older blacks. Older black men are very good. A well-dressed seventy-two-year-old black man is a great juror. I've seen DAs who'll strike him, because it's like, "Ooooohh, he's black, I've gotta get rid of him," but these people, in my experience, are very good jurors. They're from a different era, and they have a different respect for the law.
"The other thing is, blacks from the South are excellent. I don't think you'll ever lose with blacks from South Carolina. They're dynamite. They just have a different way of living down there, a different philosophy. They're law and order, and they're on the cop's side.
"Black women are very bad. There's an antagonism. I guess maybe because they're down- trodden in two respects - they're women and they're blacks - and they want to take it out on somebody, and you don't want it to be you.
"Some people say, "Well, the best jury is an all-white jury." I don't buy that. Because you can have a reverse reaction there. Particularly with a black defendant; most of the time your witnesses are going to be black. You don't want your all-white jury to say to themselves, "Aaah, who gives a shit?" You know what I mean? A jury of eight whites and four blacks is a great jury, or nine and three. Because then a white guy not going to say, "How do people live like this?" in front of the three black people in the room.
"You don't want social workers, that's obvious. They got the intelligence, sensitivity, all this kind of stuff. You don't want them. Teachers you don't want; teachers are bad. Especially young teachers.
"Another thing to do is when the forty people come in the room, count them. Count the blacks and whites. You want to know at every point in that case where you are. You'll never get it just right - you don't want to go, "Is there a black back there? Wait a minute. Are you a black guy?" No, you don't want to do that. Just look and get a general estimate. Forty come in, you get twenty-five, it's 25/15. Mark it down on your sheet, 25/15, and then you know how many are left and where you are at all times in the jury-selection process. And if you lose track or you're not sure of what's going on, you can always take a recess. You can say, "Judge, I have to go to the bathroom." You can go out and check out what's left.
"I'm sure you're all familiar with Batson v. Kentucky. It's the case where the guy was convicted of rape down in Kentucky and was tried by an all-white jury because the prosecutor had struck all blacks. They ruled that it was not due process. In the future, we're all going to have to be aware of that, and the best way to avoid any problems is to protect yourself. My advice is that when you do have a black jury, question them at length. And mark something down that you can articulate at a later time if something happens, because only after a prima facie showing can the trial judge order you to show why you're not striking them on a racial basis.
"Have them marked down so if the judge does come to you and says, "What about it, McMahon?" you can say, "Judge, these are my reasons, and I have them marked down here."
"You want to ask more questions of those people so that you have more ammunition to make an articulable reason as to why you are not striking them for race.
"So, ah, that's how to pick a jury."
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[posted 6/20/00]
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