How I got cut from jury duty

I spent parts of two days in a Douglas County District Court last week, undergoing the tedious process of jury selection for a criminal trial. I'm pretty sure I know why I got cut, and I'm still a little bothered by it.

If you've never been through the jury selection process, it can be a pretty intense thing — the prosecuting and defense attorneys each have a crack at the jury pool, asking hours of questions designed to elicit your biases, and to send you home if your biases are too overt. Lots of personal information gets shared, sometimes tears are shed, and it's all a very intense way to spend time with a few dozen strangers.

It's also, less obviously, a preparation for trial and the types of arguments that both sides will make. The lawyers, in picking a jury, are walking a tricky line: They want to get rid of overtly biased jurors so that they can conform to fair trial rules — but they also want to pick jurors who might be amenable to the arguments. So, not too biased but biased enough.

Which, I guess, is where I come in.



The prosecutor, Assistant DA Eve Kemple, wanted to test whether jurors could appropriately weigh "circumstantial" evidence. She offered up a hypothetical:

You make a chocolate cake. You leave home. You come home.  A slice of cake is missing. Your son Bobby is in the living room, apparently chewing something, with chocolate smears on his face. There's a plate with chocolate crumbs in the sink. Bobby says he didn't do anything with the cake. What does the evidence tell you? 

Pretty simple, right? It looks extremely likely that Bobby has eaten the cake and is lying about it. I have no problem so far.

The problem came when Kemple decided to expand on the hypothetical a bit:

You make a chocolate cake. You leave home. You come home.  A slice of cake is missing. Your son Bobby is in the living room, nothing in his mouth or on his face. Bobby says he didn't do anything with the cake. TWO WEEKS LATER you find a plate with crumbs on it in his room. What does the evidence tell you? 

My answer to Kemple: "It's a much closer call."

She wasn't satisfied, though. And she refined the hypothetical further — suggesting that the home in the hypothetical was a closed system in which the facts she described were all the relevant facts. She was, to my mind, stacking the deck of the hypothetical.

And I couldn't go along. She wanted a final verdict, and I wouldn't give it to her. "I'm trying to give you an honest answer," I said, and I was a touch frustrated by this point. It probably showed.

It might help if I give you some additional context: Earlier, Kemple had led the jury pool through an exercise which, she said, showed that it is okay for jurors to use their "common life experience" — common sense, in other words — to weigh evidence. And we'd been through a discussion of how "beyond reasonable doubt" is not the same as "beyond all doubt."

Well. My common sense told me that there were a billion different scenarios that could put a plate with chocolate crumbs in a boy's room two weeks after a slice of cake went missing. That the closed system of her hypothetical doesn't happen in real life, so why push it that far? That I wouldn't convict a kid of cake thievery based on that evidence alone.

So. I argued. And I got cut.

Apparently I wasn't the only person who found the prosecutor less-than-entirely convincing. For the second time in two trials, the case ended in a hung jury.