Welcome to Jury Selection
Reports on the antitrust suit.
Jan. 23 2004 8:03 PM

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"Fair and unbiased": a matter of perspective
"Fair and unbiased" is in the eye of the beholder

So the trial has finally begun. Because Judge Miriam G. Cedarbaum has decided to conduct jury selection in private, of course, the observable events consist largely of the arrivals and departures of Martha Stewart, Peter Bacanovic, and their respective legal teams. This week, these events were recorded by platoons of reporters and photographers and a battery of TV cameras pointed at the courthouse steps like the guns of Navarone. (The press is appealing Judge Cedarbaum's decision to interview jurors in her robing room instead of open court, but the appeal won't likely be heard until jury selection is over.)

Inside wood-paneled Courtroom 110 of the United States Courthouse on Centre Street, the mood is languorous: lots of time, little to see. The good news is the room is as pleasant a place to sit and wait all day as the main reading room of the New York Public Library. On the morning of Tuesday, Jan. 20, the first day of jury selection, 18 prospective jurors sat and waited in the jury box. Judging from appearances, the desired "cross section" had been achieved: The prospective jurors consisted of nine women and nine men; one of the former was reading Simenon; one of the latter was slouched inside a hooded down jacket that might have also housed a sub-machine gun.

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Every few minutes, a door at the front of the courtroom opened, and a guard named Mr. Ruocco stepped out. Mr. Ruocco called a prospective juror by number—"Juror No. 5," for example—and everyone looked to see who stood up. When the prospective juror had completed a self-conscious walk to the front and disappeared into Judge Cedarbaum's robing room, the other prospective jurors and spectators went back to reading and whispering. When Mr. Ruocco called Juror No. 5, incidentally, no one stood up. Mr. Ruocco disappeared briefly and then re-emerged: "Juror Number five," he said again. "Michelle." Michelle? Michelle? Still, no one stood up. Mr. Ruocco retreated for another 30 seconds, then opened the door again and summoned Juror No. 6.

The details of the Jan. 20 proceedings remained a secret until the 21st, when transcripts were made available for $1.10 per page. A mere $228 bought a chronicle of the whole first day. It also bought something to do in the courtroom on the second day, while waiting for Martha et al. to emerge for lunch.

The stated purpose of voir dire is to select a "fair and impartial" jury. The unstated purpose, of course, for prosecution and defense alike, is to select as unfair and biased a jury as possible (no better way to win than to pick jurors who have made up their minds before they enter the courtroom). In this case, the selection process has three stages: 1) a 35-page questionnaire, which several hundred prospective jurors filled out two weeks ago; 2) one-on-one interviews (conducted by Judge Cedarbaum with prosecutors, defense attorneys, and defendants in attendance), in which each side can challenge prospects "for cause" (demonstrated bias) and the pool is trimmed to about 50 people; and 3) a final day of winnowing, in which the prosecution and defense exercise "peremptory challenges" (we don't want him/her on the jury but we don't have to say why) until 12 jurors are seated. In some jury selections, the prosecutors and defense attorneys ask the questions, a process that allows each side to not only evaluate each prospective juror, but start persuading him or her. In this case, however, the adversaries can appeal only to the judge—before and after each interview.

According to the Jan. 20 transcript, the first batch of prospective jurors included a housewife, a school principal, a freelance writer, a psychoanalyst, and a chimney sweep. It included a man whose wife was fired from Martha Stewart Living Omnimedia—and who, on these grounds, was successfully challenged for cause. It included people who believe that stockbrokers are more dishonest than average citizens, that those who are "powerful are not so trustworthy," that the government is not doing enough to prosecute corporate crimes, and that the wealthy tend to get off more lightly than everyone else. It included a man whose money manager blamed the losses in his diversified mutual fund on criminal activity at Enron (not the most self-serving explanation I've ever heard a money-manager make for client losses, but close). It even included a man who claimed he hadn't heard much about the case.

"I really don't know," this prospective juror, No. 9, said, when Judge Cedarbaum asked whether he had seen or read or heard anything that might affect his judgment. "I'm not a news person. I'm a sports person."

"I see," replied Judge Cedarbaum. "So you don't follow the news?

"No. The news is depressing for me, so I stick to sports."

Prospective Juror No. 9 had another issue, too: He had answered "I don't know" to every question on the last four pages of the 35-page questionnaire.  He explained to Judge Cedarbaum that he had done this because he just wanted to finish. Based on this and other factors, the defense moved to dismiss him for cause—arguing, effectively, that he couldn't be "fair and impartial" because he was brain-dead.

"He is a simple man who is interested in simple things," Judge Cedarbaum agreed. But she rejected the defense's contention that this meant he would spend the entire trial with his face buried in the sports section.

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