The makeup of the George Zimmerman jury – six women, five of them white – got the attention of Sen. Gwen Margolis, D-Miami when the jury acquitted Zimmerman in the death of 17-year-old Trayvon Martin of Sanford.
Margolis has filed a bill in Tallahassee that would require a 12-member jury for any felony case that might bring life in prison. (Twelve jurors are already required for death penalty cases.)
In addition, the makeup of any jury would have to reflect the demographics of the county where the case is tried.
The current process has potential jurors summoned at random, usually from drivers’ license records or voter rolls. Attorneys for the defense and the prosecution then whittle down the group to a jury of either six or twelve members, depending on the type of case.
We wondered about the feasibility of Margolis’ plan, so we turned to Prof. Wayne Logan at Florida State University’s College of Law. His specialties include criminal law and sentencing.
Q: Would you explain the process of what lawyers go through when trying to seat a jury?
Logan: Both the state and the U.S. constitutions have a provision that criminal juries have to be impartial. The U.S. Supreme Court in several cases said that one way to ensure impartiality is to have a jury that is drawn from a fair cross-section of the community.
The Supreme Court has also held that the actual jury that is impaneled in a criminal case does not have to reflect the community in which it sits and from which it’s drawn.
Juries are selected from a venire - a broad pool of individuals drawn from the community. That venire has to reflect to some extent the community from which these individuals are drawn. From that venire, a jury is selected.
Q: The lawyers have to decide who is right for the jury. What are some of the things they consider when deciding who to keep and who to dismiss?
Logan: There are two types of challenges typically in criminal cases. There are challenges for cause – for instance, if a potential juror is related to the police officer who arrested the defendant. Then there are peremptory challenges – the lawyer (prosecutor or defense counsel) just has perhaps a gut feeling that this potential juror would not decide the case in a way that is fair.
If one side exhausts its peremptory challenges, it may not have any further recourse to challenge anybody (else.) It varies in cases and it varies in jurisdictions about how many peremptory challenges one gets. So the jury that is put in the box sometimes is one that is a result of strategic decisions made by either side.
Q: Sen. Margolis wants juries to represent the community – not just the initial batch of potential jurors that are summoned. Is that possible?
Logan: It certainly would complicate impaneling juries. First of all, you’d need to define what “demographics” constitutes (ethnic, racial, gender), and you’d need an ascertainable benchmark for the county. Even if those considerations are clarified and established, there’s going to be considerable litigation. It’s going to lengthen the time that is required to draw a jury.
Q: A lot of people who were upset by the verdict in the Zimmerman case may think this is a reasonable request. What would you say to them?
Logan: I don’t know whether it would be reasonable or not. I think when a law is enacted, one needs to think about the ramifications of that. I think this would complicate jury selection in ways perhaps that are not even foreseeable at this point because demographics (won’t) necessarily indicate how a juror’s going to decide on a case.
Q: A lot of people may be under the impression that there is a litmus test when choosing a jury that has lawyers considering information like race and ethnicity. Can you explain why that doesn’t happen?
Logan: The U.S. Supreme Court has said that race, gender - things along those lines - cannot be explicitly considered by the defense or the prosecution when selecting a jury. (This is the result of Batson v. Kentucky.)
The whole idea of having a fair cross-section from the community ultimately – from the venire at the outset – is to have an impartial jury. And the idea of a jury is to act as a hedge against arbitrary exercises of governmental power.
The U.S. Supreme Court has said that an impartial jury is one that is drawn from a fair cross-section of the community. So in the Batson decision, the court said that if you are excluding individuals because of their background, you're not going to get a fair cross-section of the community.