Nov 2017

Hail to the Jury

A few days ago President Obama was called for jury duty. The panel of prospective jurors he was part of was dismissed before even entering a courtroom. The reason had nothing to do with him being a former President, but was likely due to a settlement or plea bargain on the morning of trial obviating the need for picking a jury. Mr. Obama, along with many other potential jurors, left the courthouse after hearing “Thank you, you are not needed so you can now leave.”

Which brings up a few interesting questions. Could President Obama or any other former president end up serving on a jury? It is unlikely but entirely possible, security and logistical concerns aside. Theoretically speaking, if Mr. Obama’s panel was called into the courtroom and the jury selection process commenced, for him to be selected all of the attorneys involved would have to be content seating Mr. Obama as part of the jury. This could happen. Whether these hypothetical litigants want Obama on the jury depends of course on the type of case and the specific facts involved. The big concern lawyers would have is that by selecting Mr. Obama then a jury of 12 all of a sudden becomes a jury of 1. The thinking goes that whichever side Mr. Obama is on the other 11 will follow. I don’t necessarily agree with this. When I have talked to lawyers who have served on juries they have mostly tended to avoid being the dominating force and tried to let the other panelists dictate the tenor and tempo of deliberations. Of course, in reality, someone like President Obama would unquestionably be influential on other jurors. Even if they tried to step back a little and let others take control of the deliberations their stature would permeate the deliberation in a way that would make their perspective of the case significantly more consequential.

Another interesting question pertains to how a former President would conduct himself during deliberations from both the standpoint of a) their reaction to the case-specific information and b) their personality traits that affect the group dynamic. It should be noted that in most jury selections, the attorneys try and learn as much as possible about the prospective jurors in order to decide whether they would be favorably or unfavorably disposed to their case (or right in the middle which is usually the majority of panelists). Questions are asked, and sometimes questionnaires are used, so the litigants can ascertain more about who the potential jurors are, what exactly they do for a living, what life-experiences they have that could have some bearing on the case, and what they feel about certain case-related issues. As an example, in a criminal case where the defendant is accused of armed robbery, it would be important to know if any of the potential jurors were either the victim of an armed robbery or falsely accused of some type of robbery. [An actual convicted robber would in most cases have been disqualified.] For prospective juror Obama, so much is already known about him you won’t have people trying to figure out what he has been up to for the past 20 years.

Speaking on very general terms, Obama’s presidency can be characterized as one that looked out for underdogs, placed checks (not the money kind but the “guard against” variety) on large corporate/financial entities, and embraced science. Even though he would try to be fair and impartial, I believe he would be more aligned with an employee claiming some type of discrimination than he would with the company being complained about. I would also be wary of Mr. Obama if I represented a large drug company or medical supply company being sued by an individual who claims their product caused a particular injury. On a police shooting case, he might start off leaning in favor of the shooting victim. Remember, he is not only a former President but a former civil rights attorney. In criminal cases, he would hold prosecutors strictly to their burden, and leaving any kind of sympathy for the victim aside, convict only if the evidence warranted it. All of this is not to say he couldn’t rule in favor of a drug company or against an aggrieved employee claiming retaliation on any particular case.

My point is everyone, laypeople, judges, and even former presidents, sees the world through a prism that is based on firmly rooted pre-existing experiences and attitudes. These predispositions affect how case-specific information is interpreted which could lead to some level of bias. The individual doesn’t even have to be aware of a bias. Many jurors say they can be fair and impartial and believe it, when in reality there is something in their background precluding complete fairness and impartiality. Back to the former President. In terms of the group dynamic, Obama is a cerebral thinker and doesn’t rely too much on intuition. This could lead to a thorough, methodically drawn out discussion that some might say borders on the unnecessary. I believe in a deliberation format he would try to ensure that everyone was participating, all jurors were heard, and the mini-democracy inside the jury room ultimately led to the proper verdict decision.

What if President George W. Bush was summoned and ended up being empaneled? He did receive a summons back in 2015. I wouldn’t call this former President a cerebral thinker, but he does possess social leadership traits that people find endearing. While ultimately unpopular since his presidency, he is known for his sense of humor and connecting with people in smaller settings. Fellow jurors would like having him around for levity. From his 2015 experience, one of the prospective jurors said of him, “We were sitting there and the President, he was making a lot of jokes and he had a lot of people laughing in there. It was my first time ever seeing him, outside of being on TV. I think he was a pretty cool guy.” Remember, part of the reason he beat John Kerry in 2004 was because people preferred him to have a beer with, not that they thought he was the better student. Being the social leader he is, I have no doubt he would encourage respectful decorum inside the jury room and do his best to come to the right decision with fellow jurors and make sure they had a positive experience.

President Trump and his authoritarian personality streak would make things interesting in deliberations. He would be a good all-around juror for most prosecutions. Prior to deliberating, he would probably assume the leadership role and tell the other 11 jurors he was going to be the foreperson and then not hold back in expressing candid views about the case. Time wouldn’t be wasted rehashing prior positions taken by the jurors. Nothing “PC” or subtle in this deliberation. Strong forepersons usually get their way when it comes to a verdict, so down the road if you seat Trump on a jury make sure he is in your camp. Trump touts himself as a deal-maker, so maybe in a split jury he would marshal in some type of compromise result. A concern with Trump as a juror is that judges warn panelists not to google anything, or post on social media anything about the case until the trial ends. In a trial lasting more than an afternoon that could prove difficult for our 45th President. As soon as someone sees a Tweet from @realDonaldTrump that says, “Just got picked to serve on jury. Will be smartest fairest juror ever. Not serving is for losers,” he would probably be voted off the jury.