Biased Jurors, Withholding Evidence, Lack of Transcripts, Jury Questions.
The outrage continues over the verdict of Not Guilty on all counts against Jeronimo Yanez in the shooting death of Philando Castile. Since the verdict, there has been a great of deal of controversy made out of several factors, including the perceived bias of jurors, the fact that Yanez’s interview with the BCA was not played during the trial, and the denial by the Court of a couple of jury requests. We address these one by one below.
Much has been made of the profiles of each of the jurors in this matters. The post-trial investigation is becoming increasingly invasive. Before addressing some of this, it is worth briefly describing how a jury is selected.
How is a “jury pool” selected?
If you have ever been summoned to a courthouse for often dreaded “jury duty”, your name is in the very large potential “jury pool” of the state of Minnesota. The Justice system knows very little about a juror in this pool. Jury pools are generated randomly from information available to the justice system that is most likely to reflect the most recent and accurate information available regarding a person’s age, residency, and citizenship status. Essentially, it is taken from driver’s license registrations, Minnesota ID card registrations, and voter registrations.
At any given time, there may be several trials about to begin in Ramsey County. How many people are summoned is often a function of how many matters are set for trial or the potential for a trial to have particularly sensitive issues that may disqualify certain people. Certainly jury selection in the Yanez matter had the potential to be lengthy and contentious. We have seen anywhere from 30-60 people placed into a potential jury pool for a case.
A very preliminary questionnaire often accompanies the summons for jury duty, or it is handed to the juror when they arrive. This initial questionnaire is very thin and usually provides some general identifying information and ensures the person is not disqualified as a matter of law from serving as a juror. To even qualify to sit as a juror in Minnesota, a person must be
- A United States citizen;
- A resident of the county;
- At least 18 years old;
- Fluent in English
- Not suffer any physical or mental impairment which would prevent them from being a juror. (Blindness, total hearing loss, inability to speak, mental incapacity such that one’s cognition and ability to remember or reason is impaired, have all been deemed grounds for a person to be excused outright from a jury).
- Not a convicted felon. However, if a person is no longer on probation or parole and their civil rights have been restored (such as would be required to restore voting rights or firearm rights), one may sit as a juror.
- A person who has not served as a state or federal juror in the past four years. (This criteria is often overlooked by courts and attorneys alike, especially in rural counties).
How are jurors selected from this pool?
If nothing makes it readily apparent that a juror is disqualified for the above mentioned reasons, then the summoned juror will be assigned to a courtroom hearing a certain case. So initially the courtroom may be very crowded. In certain high-profile cases such as the Yanez trial, often an additional and very detailed jury questionnaire will be submitted, one that may take as long as 2-3 hours to fill out. The Yanez questionnaire can be found here: Yanez+prospective+jurors+questionnaire During this time, the attorneys and Court will often be addressing what are called “motions in limine”, which are final motions regarding the admissibility of evidence or placing limitations on the testimony of certain witnesses.
Random seating, information disclosed, alternates, and voir dire.
From this pool then, the names are randomized, and 14-20 or so jurors may be initially placed in seats in a jury box. This is where the process gets messy. This portion of the jury is placed before the Court for a process that is called “voir dire”, which is a formal, on the record inquiry by the Court and Attorneys into the jurors circumstances, activities, feelings on certain issues which may cover quite a wide range of topics. Ultimately only 12 people will deliberate on a verdict. However, at the end the voir dire, generally 13-14 people are “seated” and will hear all the evidence in the case, with one or two of the jurors being “alternates”. The alternate jurors do not know they are alternates. Alternate jurors are seated so that if a juror becomes ill, gets in a car accident, or faces some other emergency, the trial can continue and need not start all over again.
When voir dire first begins, the Attorneys often have on paper before them some general pedigree information on the potential jurors, including their name, age, occupation, degree of education, marital status, number of children etc. They also have each of the jury questionnaires filled out by these jurors. Often the attorneys are given over the lunch hour to review these before jury selection begins in the afternoon.
Both the questionnaire and the group voir dire may raise additional issues that will result in what is called “individual voir dire.” This gives a potential juror a chance to speak with the Court and Attorneys on what may be more sensitive or lengthy issues based on their initial answers. The jury is always invariably asked if any of them have been accused of a crime, or if they or someone they know has ever been the victim of a crime, if they are personally or professionally acquainted with any of the attorneys, officers, witnesses, or the defendant. Often an individual voir dire is made of anyone who answers these questions in a manner that warrants further inquiry or which may be of a sensitive nature. Those jurors will be individually questioned outside the presence of the other jurors for two reasons. One purpose is to ensure their answers do not taint the rest of the jury pool. Another purpose is to encourage detail and candor from a juror regarding sensitive matters. For example, if a juror has been the victim of a sexual assault, that is often something they will be more likely to discuss in detail outside the presence of other jurors.
Without getting into to much detail, the purpose of this process is not so much selecting who will be a juror, but rather, the purpose is to eliminate jurors who may harbor such a level of bias due to personally held beliefs or experiences that they cannot ultimately be a fair and impartial juror. If a juror cannot be fair an impartial, that does not necessarily make them a bad person. What is most important is that they are simply candid about their thinking. It would be natural, for example, that someone who is related in a familial way to an officer may be inclined to not doubt that officer. Someone who has been the victim of a sexual assault likely will have a difficult time being fair and impartial in a rape case.
Individually or to the group, Attorneys will often inquire into a wide range of topics. What are the juror’s favorite television shows? Do they watch a lot of legal dramas? How much have they read and heard about the particular case? How do they feel about police officers? Are they more likely to credit the testimony of an officer over other witnesses, and why or why not? A favorite is “what sort of bumper stickers do you have on your car?” What sort of political activities are they involved in? What sort of activist groups or charities do they belong to or have they donated to?
Strikes for cause
As this process moves along, one attorney or the other may approach the bench or otherwise be heard outside the presence of the jury to move to strike this or that juror “for cause.” The decision to so strike a juror is ultimately left to the judge. A judge may also strike a juror for cause on his/her own volition without motion from Counsel. Examples of strikes for cause in the Yanez Trial can be found here. As such jurors are struck for cause, jurors not seated in the rows of the jury box are moved from the benches in the back to these seats. Individual voir dire may now be made of those jurors as well.
Once this inquiry is over, and some strikes have been made, the Court will inquire of the Attorneys whether the remaining jurors are “passed for cause.” If each attorney answers in the affirmative, then the final step in the selection process is made: Peremptory strikes. These are strikes made by each attorney, 5 by the defense, and three by the prosecution, except in cases where life imprisonment is at stake, in which case the defense has 15 and the prosecution has 9. See Rule of Criminal Procedure 26 Subd. 6. These are made in the discretion of the attorneys for any reason whatsoever that did not meet the threshold for challenges for cause. The Attorney may not have liked the answer of this or that juror to a particular question or they don’t seem particular attentive etc. By this process of elimination then, those jurors are asked to leave. The remaining top 13-14 on the randomized list then will be seated as the jury to hear the case. The names of those people are read, and the rest of the jury pool is excused. The jury is then placed under oath and given initial jury instructions.
The perceived bias of the Yanez Jury.
In the Yanez Trial, much has been made of the perceived bias of the jury. In particular, the Star Tribune published a very narrow view of the profile of the individual jurors recently, noting several of them may be friendly to police officers, or have a belief that police officers are generally honest people. On this basis, people have stated that Yanez received disparate or favorable treatment by “the system” and the system was somehow rigged to treat Yanez differently. This is true in one sense, but quite false in another.
It is important to note that, in this case, the problem of the bias of juries towards police officers was turned on its head. Generally, this works against the defense and for the prosecution, because most of the time they are trying to convict a defendant. Very rarely is a the defendant the police officer. In this case, the defense called seven police officers to testify in defense of Yanez. This is obviously not the norm. It is very common for jurors to have a general bias towards police officers, or to not initially express total neutrality. It is very common for jurors to personally know or have familial relations to a police officer not involved in the case. It is very common for jurors to have had one type of contact or another with the criminal justice system. That alone is not seen by courts as a basis to strike jurors. Often when a red flag is raised by a juror, such as the fact they are more likely to believe the testimony of a police officer than other witnesses, or that they generally believe police officers are truthful or tell truth as a part of their jobs, the judge will intervene and try to “rehabilitate” a juror and morally brow-beat them into saying they can be fair an impartial. This is probably the greatest violence wrought by Courts on the jury selection process. It is often done as an exercise in judicial expediency so as to shorten jury selection, not have to call more people to jury duty, etc. And yes, it is well known that Judges themselves tend to be biased toward police officers and towards the State.
We find it interesting, only when a police officer is the defendant, are people suddenly expressing concern and outrage over jury bias towards police officers. Apparently this concern only applies when a police officer is acquitted. But the fact is, jury selection was no much different in this case than any other case for any other defendant, and in that regard, Yanez did not receive any different treatment. It is simply that the bias of juries and judges towards police benefited the defendant in this case rather than hurt him. An intellectually honest person cannot express sudden outrage in this case regarding a biased jury pool, and not broaden that concern to the systemic conviction-mill that generally characterizes our justice system. Police-biased juries send people to prison every single day in this nation on thin evidence that rises or falls on police credibility and the presumption of the honesty of law enforcement to the detriment of any defendant or witness with conflicting information. And yet there is no outrage after such verdicts. We as a society are just happy another murderer or rapist, already convicted in the media, was sent to prison. There is never any outrage until the Innocence Project or other hard working lawyers dig deep into a case on post-conviction maneuvers or appeal upon “new” evidence and fix all things “the system” screwed up in the case years or decades later after the defendant has already suffered in prison. Then we all shout “hooray” and pat ourselves on the back for being sudden internet warriors for justice. How many times have you seen in a news story, the day after a man’s arrest “Police reports indicate that child-porn was found on the suspect’s computer” or “the suspect matched the description of the victim” or “police reports say the murder weapon was found in the suspect’s car”? The same mentality that responds “hope the guy rots in prison”, placing complete and utter faith in the honesty and accuracy of police, is what leads to police officers “getting off” based on a “rigged” system that favors police. We as a society are responsible for this mentality.
Why Wasn’t the BCA’s Interview with Yanez Played?
Some months ago the defense team for Yanez moved to suppress the BCA’s interview with Yanez after the shooting. That motion was DENIED. People who have not taken the time to read articles or research the issue are under the impression that nothing Yanez said during that interview made it to trial. This is not true. It was actually the prosecution that made a strange discretionary call to not use the video of this interview during their case in chief, choosing instead to try to enter the evidence as impeachment of Yanez when he testified. This was not successful. While generally it is true that the statements of a defendant are admissible in the state’s case in chief under the theory they are “admissions of a party opponent”. See Minnesota Rule of Evidence 801 (d) But generally this is done during the State’s case in chief. However, Rule 608(b) does not allow for the use of extrinsic evidence to attack the credibility of a witness. However, the witness MAY be asked questions regarding the evidence or statement on cross examination to the extent those statements are inconsistent with the witnesses testimony. That is what happened in this case. The State WAS permitted to and did indeed cross examine Yanez with regard to inconsistent statements made to the BCA. Generally, this is done with the use of a transcript. The state asks questions, and if the witness cannot remember or is evasive, the prosecutor approaches the witness with the transcript and asks the witness to read part of the transcript to themselves, and then asks the question again, the witness having now refreshed his memory.
It is for this reason that the Jury did not actually see the video or have it in evidence, though they were able hear the testimony from Yanez as to what he said in that interview via the cross examination by the prosecutor. The fact a video existed, but the jury was not allowed to see the video, doubtlessly confused the jury. This led to this request from the jury asking for a transcript of the video. This would have been entirely improper since the interview itself was not received into evidence. Further, transcripts are only temporarily provided to juries when audio evidence is received and played for the jury. It is never received as an exhibit. See State v. Olkon.
Finally, the jury also asked for a transcript of Yanez’s in court testimony. However, as can be seen in the final jury instructions, Jurors are asked to take notes during testimony and rely on their memories informed by those notes. It is not standard procedure at all for a Court Reporter to transcribe testimony contemporaneously with the trial for the purpose of a jury reviewing such a transcript. This is not a sport. There is no “replay”. Providing transcripts to jurors would cause them to place undue emphasis on one witness’s testimony or another. It would also take hours for a court reporter to transcribe such testimony on the fly. In general, transcripts are used exclusively for purposes of Appeal, because an appellate court did not hear the testimony in the court below, and the Attorney handling the appeal may not have been the attorney of record or he/she need to accurately cite to the testimony in appeal.
The outrage over such a transcript not being provided is completely misplaced. This is not done in any trial whatsoever. Such outrage is born of an ignorance of the trial process, an ignorance we hope to alleviate here. It is true that it can be difficult for jurors to agree on what was said by what witness. Different jurors may be paying attention to different things at different times. This is often what can lead to longer deliberations and difficulty in arriving at a verdict. To the extent this raises concern for people in this case, it should be known it is the same in every case. What should be of far greater concern is the hard truth that we send people to prison every day via this same process. It is our hope that, with the information above and with the attention given to the process in this matter, people will approach the testimony of police officers and conviction of other defendants by a jury with perhaps at least similar skepticism. Alternatively, the verdict in Mr. Yanez case should be afforded similar dignity and weight as in all other criminal cases. To say that the procedure in Yanez case was rigged or altered in some way that is different from other criminal cases is simply wrong.