A jury expert weighs in on what to expect in the Jason Van Dyke trial | Bleader

Friday, September 7, 2018

A jury expert weighs in on what to expect in the Jason Van Dyke trial

Posted By on 09.07.18 at 06:00 AM

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click to enlarge Jason Van Dyke's bail was raised slightly for giving media interviews just days before jury selection was set to begin. Critics accused the defense of trying to bias the jury pool. - ANTONIO PEREZ/CHICAGO TRIBUNE
  • Antonio Perez/Chicago Tribune
  • Jason Van Dyke's bail was raised slightly for giving media interviews just days before jury selection was set to begin. Critics accused the defense of trying to bias the jury pool.

Jury selection in the murder trial of former Chicago Police officer Jason Van Dyke began this week. Nearly four years after he fired 16 shots into 17-year-old Laquan McDonald, and nearly three years after he was indicted for the on-duty shooting, Van Dyke's attorneys and the special prosecutor have commenced the painstaking process of picking the 12 men and women who will evaluate his actions.

According to data released this year by the Cook County State's Attorney's Office, just 1 percent of the some 300,000 felony cases in the county have been decided by a jury since 2009. Typically, a pool of potential jurors is selected randomly from a list of Cook County residents compiled from state driver's license records and voter registration rolls. For each case, the number of jurors in the pool varies, but for the Van Dyke trial an exceptionally large pool of more than 100 people was called for evaluation. On Wednesday selection began with a written questionnaire administered to potential jurors.

Attorney and psychologist Shari Seidman Diamond, an expert on juries and a professor at Northwestern University's Pritzker School of Law, says paper questionnaires are "not atypical of large, publicly notorious kinds of cases." The questionnaire will allow special prosecutor Joseph McMahon, Van Dyke's defense attorney Dan Herbert, and Judge Vincent Gaughan to weed out people who clearly couldn't be impartial before beginning one-on-one interviews with each potential juror (known as voir dire). The questionnaire is also "a good idea on psychological grounds," she adds, because people may feel more at ease disclosing information about themselves in writing than speaking up in front of a packed courtroom.

The questions on the questionnaire haven't been released to the public, but they're compiled by the prosecution and defense, and vetted by the judge.

Diamond says that conducting voir dire interviews with each juror individually after the questionnaire, as Gaughan plans to do, is the right decision for a case like this too. "You don't want to expose other jurors to answers [that could bias them]. . . . It takes a little more time, but it's a good thing to do." Indeed, given the size of the jury pool it could be more than a week before a jury is seated.

The voir dire interviews should be composed of open-ended questions that put potential jurors in a position to say a lot about their backgrounds and thoughts, Diamond says. For example, rather than asking potential jurors "Have you ever known someone killed by police?" to weed out people who might have a negative attitude towards cops, Gaughan might ask "Have you known someone who has had a bad experience with police?," and if jurors say they have, they might be asked to describe the experience.

During jury selection the judge can strike (and the prosecutor and defense can ask him to strike) an unlimited number of potential jurors for cause. These can be things as basic as them not being an American citizen, not being able to speak English, or having a physical impairment like blindness or deafness that would prevent one from fully considering evidence in the proceedings. But in Illinois potential jurors can also be struck for cause if they aren't "free from all legal exception, of fair character, of approved integrity, of sound judgment, [and] well informed." State law doesn't define any of these things, thus giving judges a lot of leeway to use their discretion about what kind of people will make worthy jurors.

After all strikes for cause have been made, the prosecution and defense can each strike up to five ten seven jurors without stating a reason—these are called peremptory challenges. But these challenges can themselves be challenged if either side thinks that the other is striking someone based solely on their race, ethnicity, or gender. However, the challenger has to prove discriminatory intent, and these types of challenges (known as Batson challenges, stemming from the 1986 Supreme Court decision in Batson v. Kentucky) are often rejected by judges. Batson challenges can't be used to protest striking a juror based on his or her age, religion, or—as might be relevant in this case—professional background. "Removing someone because he's a police officer or has officer relatives would be exactly what would be used for peremptory without question under Batson," Diamond explains.

After the first pool of potential jurors was brought into the courtroom Wednesday, local media reported some reactions from individuals who indicated they knew the significance of the case they might be asked to decide. One woman reportedly gasped and held her hand to her mouth; a couple of people exchanged meaningful glances. Though it will be difficult to select people who haven't heard anything about the case at all, Diamond explains that the question Gaughan will likely be asking is whether jurors think they could be fair and follow instructions despite their prior knowledge of the case. Van Dyke's attorneys clearly think people might be lying if they answer "yes" (they've filed a motion to move the trial out of the county that Gaughan has yet to decide on).  But Diamond says it shouldn't be assumed that people can't put their own opinions aside and decide cases on their evidence.

"I don't think anybody could be completely objective, but our studies do show that jurors are in large measure influenced by the evidence," she says. Her research has shown that being put in the position of carrying out such an important duty affects people's behavior and thinking. "They kind of rise to the occasion. . . . People try to get out of jury duty but what we find is that once they are actually on a jury they take it seriously and they want to get it right." She notes that the first question jurors typically ask a judge after a trial concludes is "Did we get it right?" Diamond also pointed to the example of a pro-Trump juror who recently voted to convict Paul Manafort on all charges. "The jury role is quite a compelling role that does modify what people do," she said. "The setting makes people better."

There is, of course, ample reason to suspect bias that interferes with jurors' abilities to make decisions on the evidence in a more typical trial—when a black defendant may be facing 12 white "peers" in the box. And perhaps Van Dyke will feel the same way being tried by 12 civilians with no connection to law enforcement. If he feels that he can't get a fair shake from a jury, Van Dyke can still opt for a bench trial—meaning he'd ask the judge to decide his case—up until the moment when the 12th juror is sworn in.

Correction: This article has been amended to correct the number of peremptory challenges allowed. It is not five, not ten, but seven. We regret the error.

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