Why on Earth Did Prosecutors Seat Juror B37 on the Zimmerman Jury?

The law, lawyers, and the court.
July 15 2013 6:40 PM

Why Did They Let Her on the Zimmerman Jury?

The strange, strange case of juror B37.

Defense attorney Mark O'Mara talks to prosecutor Bernie de la Rionda on the day of closing arguments in George Zimmerman's trial.
Defense attorney Mark O'Mara talks to prosecutor Bernie de la Rionda on the day of closing arguments in George Zimmerman's trial.

Photo by Joe Burbank-Pool/Getty Images

Less than two days after a Florida jury found George Zimmerman not guilty in the death of Trayvon Martin, juror B37, one of the six members of the anonymous panel, signed with a literary agent to shop her book about the trial.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The news comes with a bonus video: juror B37’s entire voir dire captured on film and promoted Monday by Gawker. The process by which counsel on each side of the case interviews prospective jurors is revealing in all kinds of ways and a useful lesson in the strengths and weaknesses of the jury system. In the case of B37, it is also a master class on how to not know anything about something everyone else knows about.

Start with the general observations already raised in Gawker: B37 consumes no media beyond the Today showno radio, no Internet news, and no newspapers used for anything but lining her parrot's cage. Perhaps because she does not consume any media, she was under the false belief that there were “riots” after the Martin shooting. She also described the Martin killing as "an unfortunate incident that happened."

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But the tape raises another question that should be debated in every trial advocacy class in America: What were the lawyers, especially the prosecutors, thinking when they seated her? Why didn’t prosecutors use one of their peremptory challenges to nix her? She’s contrarian, she raised serious ontological doubts about the nature of truth-seeking, and she was only ever truly animated on the subject of rescue birds. Both lawyers were visibly cowed by her. I asked several prosecutors, former prosecutors, and public defenders to watch the video and report on the red flags it raised for them.

Almost all of them start with the same caveat: Jury selection is not jury selection. “It’s de-selection” explains Howard Lidsky, a board-certified criminal-law attorney in Florida. “It’s impossible to make a judgment about jury selection unless you’re seated in the room,” he says. “You have 18 people in the box and just six strikes. You may dislike a juror, but you might like the person sitting next to him even less.” Ken White is a former prosecutor and criminal defense attorney at Brown White and Newhouse in Los Angeles. He blogs at Popehat.com. He makes the same point: “Even if one prospective juror seems bad, you have a limited number of peremptories, and they may have judged the others as even worse. What was the alternative?”

Robert Weisberg teaches criminal law at Stanford Law School, and he immediately wonders what it meant when juror B37 asserted that “You never get all the information. How do you form an opinion if you don’t have all the information?" Weisberg sums up his lawyerly concerns in one sentence: “She thinks the world is one big reasonable doubt.”

Gail Brashers-Krug, a former federal prosecutor and law professor, is currently a criminal defense attorney in Iowa. She also jumped back when B37 said, ”You never get all the information.“ “That's exactly what a defense attorney loves to hear,” says Brashers-Krug. “That's reasonable doubt, right there. If I were a prosecutor, that would make me extremely nervous about her.” She adds that B37’s devotion to animals might raise flags for her as well. “The animal thing is weird. She doesn't know how many animals she has, and she mentions her animals far, far more than her two daughters. She strikes me as eccentric and unpredictable. I never, ever want eccentric, unpredictable people on a jury.”

Brashers-Krug has another reservation about seating B37: “She really wants to be a juror. She seems to be going out of her way to minimize the disruptive effect of a multiweek trial on her life. Jurors rarely do that. She is also taking pains to avoid saying anything particularly sympathetic to either side. Both sides tend to be very skeptical of jurors who are particularly eager to serve on high-profile cases. Often they have their own agendas, or are attention-seekers.”

What about the odd moment when B37 called Martin a “boy of color”? White says he wouldn’t read too much into it. “There's a tendency to over-emphasize what we believe to be the right nomenclature. In the context of the whole paragraph, her ’boy of color’ sounded like she was trying to use a dimly remembered correct nomenclature (’of color’ in vogue when I was in college), but not remembering the freight of ’boy.’ ... Sure, you strike people based on really clear examples of nomenclature. As a prosecutor in a hate crime case, I once struck someone who said ’I have no problem with African Americans or whatever you're supposed to call them these days.’ But most people don't live in our terminology-conscious bubble.”

Brashers-Krug further notes that jury selection in self-defense cases “tends to reverse the dynamic between prosecutors and defense lawyers.” As she sees it, “normally a prosecutor loves law-and-order types, elderly people, people who generally don't feel safe and want the police to protect them from the bad guys. In a self-defense case, though, that's the defense attorney's target juror.”

White also says he isn’t really bothered by B37’s contempt for the entire media: “Her comments about the media wouldn't have turned my head whatever side I was on. I think it's the prevailing American view, and not uncommon at all. I don't see how it's logical to trust Today and not other sources, but very little of our relationship with the media is logical, and mistrust is healthy.”

Watching B37 run rings around her interlocutors raises once again the fundamental question of what we achieve whenever we attempt to seat a juror who knows nothing whatsoever about a high-profile case. We are left with people who avoid any brushes with policy, law, or politics and—paradoxically—come to convince themselves (as does B37) that everything they will hear in the courtroom is truth. This is hardly a new problem. Mark Twain grumbled about it in Roughing It in 1864:

“In this age, when a gentleman of high social standing, intelligence and probity, swears that testimony given under solemn oath will outweigh, with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity, and justice would be far safer in his hands than in theirs. Why could not the jury law be so altered as to give men of brains and honesty and equal chance with fools and miscreants? Is it right to show the present favoritism to one class of men and inflict a disability on another, in a land whose boast is that all its citizens are free and equal?”

It’s not that juror B37 is a miscreant or a fool so much as a reflexive doubter that truth and facts are really knowable anymore. She speaks for the millions of Americans who believe that everyone is lying about something and the media lies about everything. The Internet, she explains, is for getting to the next level on Candy Crush Saga, not for getting information. And since everything is a lie, she doesn’t care enough to learn that the riots she believes to have happened did not. One wonders whether she would buy her own book about the truth behind the Zimmerman verdict.

In his day, Twain was fretting about seating juries comprised solely of “desperadoes …  beer-house politicians … bar-keepers and ranchmen who could not read.” Today, I worry about seating jurors who believe that since everyone is lying and everything is a lie, facts are for lining the birdcage.