We will be following the allegations by Jack Quatman that Alameda County prosecutors kept Jews and African-American women off death penalty juries. Peter Keane, who's been a criminal trial lawyer and the Dean of Golden Gate Law School has been quoted as saying that the practice of choosing jurors by ethnic stereotype was once openly done, and is still sometimes secretly done, even though it's forbidden. I thought it would be interesting to see how it was once done, so in the extended post I offer a passage from Day in Court, a 1910 book by Francis Wellman, the famous trial lawyer whose The Art of Cross Examination is still read widely today. Although his passage seems dated, that kind of advice "has legs" and I would venture to guess that Wellman's printed comments have softer edges than the ones he would have spoken to his law partners. He has no comments about women or African-American jurors.
For longer treatments on these issues, read Professor Abbe Smith's (Georgetown) articles, "'Nice Work if You Can Get It': 'Ethical' Jury Selection in Criminal Defense," 67 Fordham L. Rev. 523 (1998), and "Burdening the Least of Us: 'Race-Conscious Ethics' in Criminal Defense," 77 Tex. L. Rev. 1585 (1999).
Wellman wrote: "It is often well to examine as to the class of witnesses one is expecting to call. Many jurors have prejudices against experts. One nationality is prejudiced against another. The Irish are often prejudiced against the Hebrews, and vice versa.
"Germans are stubborn, but generous. Hebrews, as a rule, make fine jurors, except where they are prejudiced. Young men are safer than old men, unless the advocate is for the defendant, when he wants older men. If for the plaintiff, an advocate should remember that he must win the twelve; if for the defendant, he needs only one.
"If he is defending in a criminal case, he needs all kinds of men on his jury, old and young, rich and poor, intelligent and stupid, a German, an Irishman, a Jew, a Southerner, and a Yankee. He should mix them up all he can and let them fight it out among themselves and agree if they can." (pages 125-126)
One has to understand that time in order to grasp the meaning of such comments. This was the era of Teddy Roosevelt and the heyday of the idea that white civilization was going to take over the world and civilize the heathens.
No mention of women and African-Americans may mean that neither of these groups regularly sat on juries. Neither could vote at the time - one de jure and one de facto.
Posted by: moob | March 22, 2005 at 08:42 PM
I think you are correct about women and African Americans and that's what I meant -- but perhaps should have made more explicit.
Posted by: John Steele | March 24, 2005 at 07:25 PM