TWENTY-FOUR
'Voir Dire” is a legal phrase meaning “to speak the truth.” In the American legal system, “voir dire” refers to the process of picking a jury, perhaps because of all the players in a criminal trial, only the jurors are truly interested in the truth. Everyone else just wants to win.
In federal court, jurors must be citizens; at least eighteen years old; proficient in reading, writing, understanding, and speaking English; not be physically or mentally infirm; not have been convicted of a felony; and not have felony charges currently pending against them. Finding twelve people who meet such qualifications is easy; finding twelve people you would want to sit in judgment of your life is not.
That’s where voir dire comes in. The judge and lawyers question the prospective jurors to uncover biases, prejudices, and predispositions that might prevent them from rendering a fair and impartial verdict. At least that’s the theory. The reality is that every juror comes to court with his or her personal biases, prejudices, and predispositions that will absolutely prevent that person from rendering a fair and impartial verdict-which is precisely the kind of jurors both sides want. The real goal of voir dire is to find twelve jurors who are biased, prejudiced, and predisposed in your favor.
A trial in a court of law is not about truth, justice, and the American way. It’s about winning. Prosecutors want a conviction so that they can build a track record of putting criminals in jail, a prerequisite for election or appointment to higher political office; defense attorneys want an acquittal because acquittals in high-profile criminal cases bring fame and fortune. Thus neither the prosecutor nor the defense attorney is concerned with truth or justice: truth is whatever they can get a jury to believe, and justice is when they win.
As he sat in a federal courtroom in downtown Dallas on a hot day in August, Scott Fenney believed his client had put the barrel of her. 22-caliber gun to Clark McCall’s head and pulled the trigger. He also believed she had done so in self-defense. Now he had to question the men and women sitting before him in the hope of finding twelve jurors who might agree with him and, if not acquit his client, at least not send her to death row.
Judge Buford had already questioned the prospective jurors concerning their legal qualifications and dismissed only one, a man who, when asked if he had any pending felony charges, answered, “They haven’t been able to prove anything yet!”
Ray Burns had then questioned the prospective jurors about their willingness to find the defendant guilty knowing she might be sentenced to death. Seven prospective jurors said they were morally opposed to the death penalty and were excused.
Now twenty-nine prospective jurors were staring at Scott Fenney and Robert Herrin, waiting for the defendant’s counsel to question them. In every prior voir dire, sitting next to A. Scott Fenney had been an expensive psychologist trained in the art of jury selection, not a lawyer who practiced street law in a strip center next to a Mexican bar. For fees up to $1,000,000, such jury experts conduct mock trials, focus groups, and pretrial polling to develop a detailed psychological profile of the ideal juror. They investigate the prospective jurors’ employment, income, religion, hobbies, and politics. They study their clothes, their body language, and their answers during voir dire. They coach the lawyers on what to drive to the courthouse (leave the Mercedes-Benz at home because jurors might see you in the parking lot), what to wear to trial (no Rolexes or double-breasted Armani suits), and how to act in front of the jurors (try to “humanize” yourself; that is, pretend to be a normal human being in front of the jurors, a more difficult assignment for most lawyers than merely dressing down). They give the lawyer a thumbs-up or a thumbs-down on each prospective juror.
A lawyer learns with his first jury trial that the case is won or lost during jury selection. Today, with enough money, you can legally fix a jury. But since neither Scott nor his client had enough money to hire a jury expert, there was no paid consultant sitting next to Scott, only Bobby.
So Scott said to the men and women before him, “I’m nervous, about this. I’ve never represented a person accused of murder. Are you nervous, too?”
Heads started nodding.
“Well, rather than me asking you a lot of questions, maybe we’ll just visit for a while. Forget what we’re here for, forget you might be jurors, forget we’re lawyers-as you might have read, my former law firm’s been trying to forget I’m a lawyer.”
A few chuckles from the jury box, which gave Scott an idea.
“What’s the difference between a rattlesnake lying dead in the middle of a highway and a lawyer lying dead in the middle of a highway?”
A female juror: “Skid marks in front of the snake.”
The jurors laughed.
“You know why New Jersey got all the toxic waste dumps and California got all the lawyers?”
A male juror: “New Jersey got first choice.”
Louder laughter from the jury box.
“What do lawyers and sperm have in common?”
A male juror: “They both have a one-in-a-million chance of turning out human.”
Raucous laughter.
The same juror: “How do you know when a lawyer is lying?”
An old lady: “His lips are moving.”
Another: “A lawyer is a liar with a permit to practice.”
And another: “If an IRS agent and a lawyer were both drowning and you could save only one, would you read the paper or go to lunch?”
Scott finally interrupted the revelry.
“Hey, I went to law school. I get to tell the jokes.”
The jurors’ laughter died down, but their smiles remained.
“I take it you people don’t care for lawyers?”
All twenty-nine heads shook emphatically.
“You hate lawyers?”
All heads nodded emphatically.
“Why?”
An older man: “Because lawyers don’t know the difference between the truth and winning an argument.”
An older woman: “Because lawyers think being clever is the same as being smart.”
A young woman: “Because a lawyer will tell you the sky is green if that’ll help his case.”
A young man: “Because lawyers are greedy.”
Bobby: “Yeah, and they’re-”
“Bobby!”
Scott turned to the jurors. “And he’s a lawyer!”
The jurors were chuckling again.
Ray Burns stood. “Your Honor, if Mr. Fenney is through with his stand-up comedy act, perhaps we could-”
“Sit, Mr. Burns,” the judge said.
Ray Burns sat. Scott addressed the prospective jurors.
“Okay, I think we’ve established that all of you hate lawyers. And that’s okay. We deserve it. But my client doesn’t. You can hate me because I’m a lawyer, but don’t hate her because you hate her lawyer. Her life is in your hands. Give her a fair shake. Can you all agree to that?”
The smiles were gone, replaced by sober expressions. Every single juror nodded.
“All right, now I need to ask you a few questions. First, have any of you participated in voir dire before?”
One young man with a nose ring raised his hand and asked, “Is that like when there’s four?”
“Four what?”
“Four people. You know, like menage a trois plus one.”
From behind, Judge Buford’s weary voice: “You’re excused.”
