Part 6 (1/2)
”Why,” he said, ”I was sitting around all day worryin' about my lost working day. If I'd known I was getting two dollars for doing nothing I might have been enjoying myself.”
The clerk puts his hand into the wooden wheel after the names have been well mixed and draws out one card after another, calling the names aloud until twelve jurors have been called to the box.
To the entirely new spectator there is a certain mystification about this drawing of the jury from the wooden drum with the handle for turning. To the initiated it may seem rather humorous, like the shuffling of the cards of justice, the drawing from a hat, or the turning of a roulette wheel. It is, however, significant of one of the great principles of Anglo-Saxon law, and that is a trial by a court of average men selected from among the ordinary citizens and drawn on the particular case by chance.
As each juror's name is called he comes forward and his appearance is not lost by counsel. He takes his seat in the box, the juror being first called is known as Juror No. 1, and by this chance, if he remain in the box, he ordinarily becomes the foreman of the jury. In cases of special juries, as of the Grand Jury, the foreman is chosen by selection. The successive jurors are respectively numbered according to their seats beginning from right to left facing them. Here it may be noted that some lawyers in addressing questions to the individual jurors are careful to remember to call them by name, realizing that no one likes to be known by a number. Instead of referring to him as Juror No. 7 or No. 9, he addresses him as Mr. Sullivan or Mr.
Schmittberger.
The twelve men being in the box the counsellors begin to examine them as to their qualifications. On a small board bound lengthwise by rubber bands, or stuck in grooves are the cards drawn from the wheel and arranged according to the number of the seats, and containing the names, addresses, and occupations of the gentlemen seated in the box.
There are two means of removing a juryman. One is by challenge for cause, _i.e._, that he is shown to be unfit or prejudiced, and the other is what is known as a peremptory challenge which is practically the same as saying one side or the other does not like the man's looks. There are connotations about the word challenge which are essentially dramatic. It implies a battle, a duel, a tournament.
It is difficult to ascertain exactly what principles govern the successful examination and selection of a jury. In Ma.s.sachusetts and in certain important cases in New York, the whole panel of jurors summoned for the term of court have been investigated by detectives in order that the lawyer might have information about who was to be rejected or accepted as a juror to decide the case. The propriety of doing this may be questioned and the ordinary case could not bear such an expense.
Nevertheless there is a possibly sound reason for obtaining such information. Given a man's condition in life, his habits, his occupation, his church, his a.s.sociations, his politics, and given on the other hand a certain state of facts, it is nearly ascertainable how he is going to decide those facts. If a man has always been a rent payer and has probably had continued trouble with his landlord about repairs and a feeling of resentment at the regular recurrence of rent day, is it not natural that he is going to be somewhat prejudiced against a landlord in a dispute between landlord and tenant? or on the other hand can a man who is one of the unfortunate owners of real estate, and who having paid taxes, interest, insurance, repairs for removal of tenement house violations, and with frequent vacancies, really be absolutely just? If a juryman is a Jew, a Catholic, or a Baptist, there will probably be an innate sympathy for his co-religionist. The law does not recognize this unless the juryman is honest enough to confess a prejudice. The soundness of the Anglo-Saxon jury system is based on the theory that there is not one juryman but that there are twelve and that among twelve there will be an average between the landlord and the rent payer, between the Baptist and the Catholic.
The counsel ordinarily selects the jury with observation and common sense as his sole guide. The customary question asked jurymen, whether, given such and such a state of facts, ”Do you think you could render a fair and impartial verdict?” is manifestly absurd to the juryman. Every man believes himself to be perfectly honest and just.
It takes a strong character to say, ”I couldn't be fair.” As a matter of fact such a man ought to be kept on the jury rather than let go. As a juryman once said to a lawyer after the case: ”Why did you excuse me when I said I knew the other lawyer? You wasted your challenge; he wouldn't have let me stay. I knew him too well.”
The extent to which the examination of the fitness of jurors may go is in the discretion of the court. The two extremes are represented by the methods in the English courts where the judge exercises close supervision over every question in the selection of the jury in what would be considered in America an arbitrary and unjustifiable manner, and the extreme liberality at criminal trials in this country. The difference in time is often between that of a few minutes and a few weeks.
Naturally the challenge for cause may or may not be allowed by the judge--the form being, ”Your Honor, I ask you to excuse Mr.
Smith,”--because the lawyers are more careful in attempting them; for if they are not allowed the juror challenged may be small-minded enough to retain a grudge against the counsel. The sure challenges are the peremptory ones without any cause stated or reason given. The number of peremptory challenges for each side is usually six. As soon as a juror is challenged he steps out of the box and the clerk draws a new name from the wheel.
It is very much as if a player were dealt a hand of twelve cards, and under the rules of the game each side can discard and draw six times from the pack six single cards to improve his holding. The hand, however, is not only his but his opponent's, who may likewise discard and draw six cards when the first player is satisfied. When the second player is through the first may again discard any of the new cards the second has subst.i.tuted, provided, of course, that six drawings have not been exhausted. This game of chance is always played with an eye to creating a favorable impression on the jury and may be politely finessed to the extreme.
”Mr. Merriweather, do you know the defendant in this case, Mr. Jacobs, or his attorney, Mr. Jenkins, or his a.s.sistant, Mr.--er--the young gentleman on his left?” is the usual form, delivered with the utmost urbanity. It means very little, but perhaps helps the lawyer to identify an antagonistic juryman and to obtain their answers, which are almost uniformly in the negative. It is obviously desirable that the juryman, as a judge, should not be a friend of the opposite side.
From the manner of the man in the box, as he answers, may possibly be inferred his general disposition, and all further questions have this purpose in view. So the attorney for the plaintiff proceeds throughout the twelve before him, and he may say at any time, ”Your Honor, I excuse juror number so and so.”
Usually he examines the whole twelve before ”excusing” any of them, and when doing so many lawyers turn from the box to the judge as they say, ”I will excuse numbers four, five, and eleven.” Frequently those remaining do not realize why their brethren have been dismissed. A slight bewilderment may pa.s.s across the faces of all, as a man here and there, under the beckoning finger of the clerk, rises to give up his seat.
Opinion differs as to the extent to which challenges should be exercised. Some trial lawyers are chary in using them, being anxious to appear frank, trusting and willing to accept the judgment of any decent citizen. Others are meticulously insistent and exhaust all their challenges. The first att.i.tude is the one of saying:
”I have such a fine case, so honest and just, that it is impossible that any fair-minded man should decade against me. Therefore, I shall not insist on these minor points of interest or prejudice. You are all open-minded. I will leave it to anyone.” The second att.i.tude was explained by one lawyer who always put his hand to his chin, looked deeply and inquiringly at the jury, and said in an important voice:
”I challenge jurors numbers 6, 8, 9, and 11, or, 4, 5, and 12.” When privately asked on what theory he proceeded in his earnest selection which seemed to imply so wonderful an insight, confessed to no theory at all except the plainly human one that he believed in using up all his challenges simply because it made the other jurors, who remained in the box, feel better and more selected. But the main purpose of selection is to secure a fair and intelligent jury.
Not infrequently one side or the other really wishes to get rid of the best men and willing to take the risk that this will not be apparent.
In a real estate case, counsel for the plaintiff not having a strong case succeeded in eliminating every man who had ever owned or who had ever had the slightest experience in houses or property. It was a bold confession that no one who understood the case would decide for him.
In railway accident cases, the plaintiff, who asks damages against the company, will often excuse so far as he can, every juror who appears well-to-do or a man of property.
A prominent New York lawyer, when a young man, had defended a case brought against a corporation. The plaintiff and his attorneys were Jews, and the jury-box when first filled was seven-twelfths Hebraic.
Counsel for the plaintiff immediately excused the five Gentiles and when the corporation's lawyer stood up, not a man in the jury-box was of his own race. He accepted them. The trial went on, and it appeared that the plaintiff's claim was very weak indeed. At last counsel for the defendant had to sum up and he concluded in this way:
”Gentlemen of the Jury: The plaintiff hopes to win this case not on the law, nor on his evidence, nor on any consideration of justice. He hopes to succeed because of the simple fact that he is a Jew, his lawyer is a Jew, and every one of you men are Jews.” With an expression of faith in the sense of justice inherent in the Jewish race and of confidence in the verdict, the attorney for the defendant sat down. The jury decided in his favor.
Such boldness, when successful, is often rewarded, but it is of course inherently dangerous.