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Notes -
Daniel Penny Acquitted
Last Friday after several days of deadlocked deliberations, the judge agreed to the prosecutor's request to drop the most serious charge of manslaughter, and asked the jury to consider the lesser charge of negligent homicide. It's strange that the jury was so quickly able to dismiss this charge while spending multiple days debating the more serious one.
This case was pretty controversial but judging by the political temperature I don't forecast any major protests or riots.
Explain like I am not a NY lawyer: why would everyone in the jury find him not guilty of Criminal Negligence but be split on Manslaughter?
Maybe people on the jury saw the dropped charge for what it was, a naked attempt to still send Daniel Penny to prison when it looked like their case was lost.
My guess is that there were one or two people on the jury who saw Penny as a hero who wouldn't agree to any conviction no matter how minor. I would have been one of those people, and would have more than willing to hide my power level during jury selection.
I'm sure our lawyers will chime in, but they always seem to miss the point. It's not about the nitpicky lawyery details most of the time. It's about who has the power to get what they want, using the law as a pretense to achieve this.
Regardless of the instructions, the jury was really asked to consider "do you think Daniel Penny is a murderer who you want to see rot in prison"?
Maybe the DA will face some blowback for wasting the public's money trying to send a good man to prison while routinely failing to prosecute career criminals who prey on ordinary people.
It doesn't look like it played that way. If 10 or 11 of 12 are willing to convict then they aren't going to decide to acquit because of 1 or 2 people, especially not so quickly after the higher charge is dropped. If the jury is mostly willing to convict the guy of manslaughter after days of deliberation, I don't see 2 people turning around the other 10 in a couple of hours. This looks more like most of the jury wanted to acquit but one or two holdouts wanted a conviction. Dropping the manslaughter charges may have signaled to the jury that the prosecution didn't really believe in their case, which may be enough to flip these people.
I'm generally curious; what makes you think you could hide your power level during jury selection? How do you think you could accomplish this?
By not being too gung-ho in either direction (so neither side vetoes you) and possibly playing down your IQ somewhat?
The one time I was in a jury pool, it did seem like the lawyers from both sides were trying to get people to self-identify as independent thinkers and then veto them. Probably both lawyers thought that they were in total control and wanted to have a jury of relative simpletons that they could guide. Of course, not both can be right.
I'll admit, I know almost nothing about jury selection except for what I've read in John Grisham novels, lol. I think it would be fascinating to hear about how trial lawyers approach selection in a big case like this one.
It's not so much that we don't want smart people or independent thinkers as it is that we don't want overly opinionated people who will fuck up the deliberation process. A jury full of relative simpletons isn't a good thing because they won't want to pay attention, won't be able to understand the testimony or jury instructions and will instead just rely on whatever biases they have. The Chauvin jury was composed almost entirely of people with professional or managerial backgrounds. What we're trying to avoid is the kind of person who is overly opinionated and is unwilling to work with the other jurors. We need people who can deliberate, not just voice their opinions. If 1 juror gives the other 11 the impression that he isn't fully invested in deliberating and has already made an unchangeable decision, all it's going to do is piss of the other jurors and increase the chances of a hung jury.
That brings me to another aspect of your plan that was faulty: The presumption that you would be able to hang the jury on your own. Hung juries are almost always fairly evenly split. If you find yourself in a room with 11 people who are voting to convict after several days of deliberation, then it's unlikely that they're doing so purely for political reasons. If you haven't turned at least a few members around in that time, then you're probably wrong, and unless you're a total moron, you'll probably come around yourself. In a high-profile case such as this, there is going to be a lot of pressure for a verdict, and the judge isn't going to send everyone home just because you say you're deadlocked; the system is willing to keep you there a lot longer than you think they will.
I can't speak for big cases, and there are differing theories, but a few general truisms hold. Basically, I aim to have a discussion with prospective jurors, not an examination. In big trials they might interview the jurors individually, but most of the time they bring them in 10 or 20 at a time. I'll start by making a general statement that I expect most people to agree on, just to get people comfortable with raising their hands. There will inevitably be someone who doesn't raise their hand, so I'll pick on that person first to see why they don't agree with everyone else (it's usually because the person is incredibly shy). From there, I try to focus on open-ended questions that don't suggest an answer and give the prospective juror a chance to elaborate on their views. I try to avoid anything that can be answered with a simple yes or no.
For example, in this case I might ask "In the past several years there has been a lot of discussion about how people are increasingly feeling unsafe on public transit. What do you think about that?" And this is where @ArjinFerman's comment ties in. Most people will speak freely about controversial subjects during voir dire. Most people will offer opinions that have the potential to get them booted. You don't know what my trial strategy is or what evidence is going to be presented. You haven't read all of the other jury questionnaires. You don't know where I'm going with my questions. If you think that straddling the line between both sides is going to work, you'd better be sure that you know what the sides actually are. If I'm the prosecutor on this case, I'm not trying to get a bunch of woke-ass do-gooders on the jury, because that isn't going to happen. I've probably accepted the fact that the jury pool is frustrated about erratic behavior on the subway and is sick of having to deal with it. Yeah, some people are more liberal, but they're going to be outspoken and probably get the boot from the defense. I'm trying to craft an argument at trial that acknowledges Mr. Penny's right to intervene but that the problem was in the execution. The only question is whether I think you're willing to accept my argument, and you don't know my criteria for that.
"IDK, maybe -- I haven't really noticed anything, myself"
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