Juries

Derek Chauvin Jury Selection Process Highlights Need to Stop Dumbing Down Juries

The system routinely excludes not only those who might be familiar with a given case, but also those who have relevant background knowledge that might improve the quality of jury deliberations.

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Jury selection is now proceeding for the upcoming trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, in a horrific incident that touched off nationwide protests against racism and police brutality. Many aspects of the process seem calculated to exclude not only potential jurors who have strong feelings about the specific case (and thus might be biased), but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, and other matters. In recently published articles, both Harvard Law School Professor Noah Feldman and The Week columnist Bonnie Kristian argue that this situation highlights the need to change selection policies that have the effect of dumbing down juries by excluding those with the greatest potential knowledge and insight.

Here's Kristian:

Though in some ways unusual because of the high profile of this case, the long and onerous process by which the Chauvin jury is being chosen is a window into broader dysfunction of jury selection in the United States. In theory, we are tried by a jury of our peers. In practice, however, juries are significantly selected for ignorance using standards that are increasingly unworkable in our omnipresent media environment, and the strain of jury duty is borne disproportionately by people who often don't want to be there and can't afford it. This is hardly conducive to justice…

Potential Chauvin jurors were sent a 16-page questionnaire in December. It probed their knowledge of the case, their media habits, political views (this isn't a death penalty trial, but if it were, anyone with even slight moral qualms about execution would be rejected), hobbies, religion, and more….

Our jury system's "efficiency," as Mark Twain snarked in 1873, "is only marred by the difficulty of finding 12 men every day who don't know anything and can't read."

Twain was only exaggerating a little. The Chauvin questionnaire, for example, inquires if jurors have been to a Black Lives Matter protest and, if so, what their sign said. It asks if they have martial arts or chokehold training or experience in law enforcement, criminology, forensics, health care, mental health care, or civil rights issues. Any juror answering "yes" will probably be dismissed for cause.

In fact, manuals on jury selection outright advise lawyers to exclude anyone who could play the Henry Fonda role in 12 Angry Men, reasoning with fellow jurors and guiding them to a conclusion. "You don't want smart people," a Philadelphia prosecutor once explained, because they'll "analyze the hell out of your case."

Many of the questions presented to potential Chauvin jurors seem designed to screen out the very sorts of people most likely to be able to make thoughtful, well-informed decisions about  the issues in the case. That is especially true of those that focus on the respondents' knowledge of health care, forensics, criminology, and other simlar issues. And, while the extraordinary publicity and political tensions surrounding this case are unusual, efforts to exclude knowledgeable jurors are common in more typical cases, as well.

Feldman explains how this tendency undermines a key function of jurors in the Anglo-American legal tradition, which was in part to bring to bear the collective knowledge and insight of the community:

The logic [of current practices] is understandable. We don't want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand.

Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody….

The criminal jury in the Anglo-American tradition used to have a very different purpose…. The medieval purpose of a jury of peers drawn from the vicinity was to make sure that the jury was full of local people who already knew the facts of the cases they would hear.

That's right, the jurors were picked not because they were ignorant of the facts but precisely because they could be expected to know what was going on. In an era before modern police or criminal investigation, juries were proxies for detectives….

Over time, the jury gradually changed from a body that knew the facts already to a body intended to judge the facts afresh….

Under [modern practices],….  judges can keep from the jury certain information — like the fact that a crime victim has previously been arrested…. The rationale is reasonable: It could influence how the jury thinks about the case against Chauvin. Similarly, the fact that the city of Minneapolis has reached a $27 million settlement with Floyd's family could also shape the jury's thinking. Again, judicial exclusion might be the right answer.

The fundamental problem is that anyone who reads the news may have come across these facts already. In theory, knowing this information shouldn't bar anyone from the jury, provided that the potential juror can credibly say that she will keep an open mind. But in practice, a judge who wants to avoid reversal on appeal has a strong incentive to exclude jurors with relevant prior knowledge.

The upshot is that it may be appropriate to take a fresh look at jurors' level of knowledge, with the full recognition that jurors bring all kinds of prior biases to hearing cases — not just factual information.

It's one thing to keep jurors in a bubble once the trial has begun. It's quite another to choose jurors who have chosen to live their lives in self-imposed bubbles. Those may not be the cross-section of the public whom we want to entrust with our most high-profile criminal cases, the ones where justice is on the line not only for victims and defendants, but for the country as a whole.

For reasons I explain in a 2014 article, jury ignorance is not as severe a problem as political ignorance among voters. But it is a significant problem, nonetheless, particular in cases requiring analysis of complex evidence and those touching on broader policy issues (the Chauvin case might be an example of both). Thus, there is good reason to reform the jury selection system so as to minimize  exclusion of people who supposedly have "too much" knowledge, and perhaps even to promote greater participation by such people.

I outlined some ways to do that in a 2015 post, where I advocated limiting the ability of lawyers and judges to remove potential jurors because of their background knowledge. I also suggested this problem strengthens the case for making jury service voluntary, a reform that should be combined with paying jurors much higher wages for their time, so as to incentivize participation by more knowledgeable members of the community:

The problem of juror ignorance also strengthens the case for making jury service voluntary. As in the case of voters, those who choose to serve voluntarily may well be more knowledgeable than those who do so only because they are forced to. States could incentivize more knowledgeable citizens to serve on juries by compensating those who serve for the full value of their time.

Juries play a vital role in the legal system. But that doesn't mean participating must be coerced, any more than we have to draft lawyers, judges, court reporters, police officers, and others who participate in the administration of justice.

Concerns that a voluntary jury system would undermine representativeness can be addressed by using randomized lotteries and (where needed) specialized sampling techniques to alleviate this problem. Compensation levels can be adjusted to ensure adequate participation by various groups. For example, the state could offer higher jury pay to those who would forego more income by serving, or to parents of small children who would have to pay additional daycare costs. The resulting jury pool might actually be more demographically representative than the current mandatory version, which includes a variety of "hardship" and other exemptions.

Kristian builds on some of my ideas in ways that I hope policymakers will consider:

Current jury pay is absurdly low: Chauvin trial jurors will be compensated the Minnesota rate of $20 per day, or $2.50 an hour for an eight-hour day. Federal jurors usually make $50 a day, which works out to $6.25 an hour, a dollar below the federal minimum wage. Pay this low unfairly imposes the cost of jury trials on an unlucky few instead of the whole citizenry. It also creates a strong incentive to avoid jury duty or perform it without due care to speed the return to normal life.

Beyond a voluntary system with decent pay, I also wonder if capping the size of jury pools could be useful. A 2015 Associated Press report on a murder trial in Louisiana said an initial jury pool of 200 people was reduced to 80 by the usual exemptions. Those remaining were considered too few to assemble a jury. Lawyers have a right — a duty — to pick the best jury they can for their client, but that degree of selectivity beggars belief.

In a more recent case, the exemptions combined with the pandemic reduced a jury pool of 150 to 19, well below the far more reasonable minimum of 31 people the court wanted to pick 12 jurors and one alternate. For all but the most unusual trials, like Chauvin's, a post-exemption jury pool of 30 or 40 seems like enough to get a good community cross-section. It might even force attorneys to keep a few more knowledgeable jurors around.

In sum, much can be done to reduce the dumbing down of juries, while simultaneously making jury service less unfair and coercive. Perhaps the Derek Chauvin case will lead to more serious consideration of potential reforms.

NOTE: A couple short passages in this post are adapted from a 2015 piece I wrote on making jury service voluntary.

NEXT: The Duty to Correct Your Own Libelous Posts, and the Single Publication Rule

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  1. But enough about public education amirite?!?!?

    1. Another lawyer failure due to stupidity, jury selection. To be meaningful, jurors should be randomly selected from the census, not from the voter rolls. Then, service should be mandatory, even if the President of the United States.

      Juries themselves are a stupid idea, cool in the 13th Century perhaps, not today. The smartest, most experience person in the tribunal is totally disabled on purpose, the judge. Judge should do their own investigations, come to a verdict, and compensate the victims of their carelessness if wrong. These victims include innocent convicted defendants and victims of wrongfully loosed criminals.

      1. Don’t you rail regularly against legal complexities of lawyers?

        Having to prove to the people the law has been violated (and openly and in public), rather than the government law specialists deciding themselves, is a worthwhile hurdle, even if sometimes there are bad decisions because lawyers wave baubles so swiftly the commoners’ eyes glaze over. Having these specialists decide themselves does not seem to help the clarity.

        It may have been good in the 13th century, but in a world of industrialized obfuscation and astroturfing, it’s great, now.

        1. I appreciate the complexity. The jury has the wisdom of the crowd. Many want just want to go home. They can be swayed by an intense juror who is insistent, if only to end the trial, and to go home. I agree a real expert can explain the technical opinion in 6th grade language or else is not a real expert. But what about excellent opposing experts on a highly technical subject cancelling each other out? Jurors may as well flip a coin.

          I also oppose totally crippling the smartest, most experienced person in the room, the judge. If a judge drives by the intersection of an accident, that ex parte act will get him expelled from the bench (real case). Most judges were prosecutors. As insiders, they are in the best position to judge corner cutting by the prosecution, and the bullshit the police does. Ironically, they may protect defendants the most.

          1. Ideally, judging would be a separate profession from lawyering. It should have judging schools, judging licenses, judging liability insurance, reviews by judging experts, reviews of the facts in a case, not just of errors of laws. Appellate judges should be allowed to fully re-open the facts of a case, and to re-investigate, using top, experienced investigators. Get those cold case guys who read every word and view every picture of a file, and solve it after 10 years.

            Beyond a reasonable doubt means 80% certainty. Indeed, 20% of convictions are false. The standard should be moved up to 99% given the dire consequences to all parties, including victims and their families.

          2. Or the former prosecutor now judge may be silently (or not so silently) rooting for the prosecution. I am told this happens.

    2. Public education built America. Those who dislike modern America consequently dislike American public education.

      The good news is that our culture war casualties will be replaced by better Americans.

      1. One of these days I would love to study the material that conditioned you.

        Public education in this country sucks. For proof, tell me how many of the last 10 presidents sent their kids to public schools.

        1. That’s not a fair statement because the DC public schools suck — and they fired the Supt who might have fixed that.

          There’s also a security issue and Sidney Friends is securable — although the massive security bubble of a Presidential child in a DC public school would clean up the gang violence in the building…

    3. A minor issue unless you encounter it: the county seat and courthouse is 200 miles away, so a jury summons needs a minimum of a 400 mile auto trip and a motel for at least one night and meals for most of a day. Selection to a jury on a prolonged trial would be really expensive, on the order of $150 per day. A federal jury would be 400 miles each way. There are counties and States in the West where this is reality. Minor issue, but not to be ignored.

  2. It’s such a tough issue, because you don’t want biased people who have made up their minds, but you do want smart people who are informed about issues facing society.

    And it’s made worse by something Prof. Somin doesn’t really touch on- a lot of times these questionaires are designed to try and allow lawyers grounds to get around Batson. The Black Lives Matter question seems a perfect example of this- prosecutors can exclude white anti-BLM jurors and defense lawyers can exclude Black pro-BLM jurors, and each of them can just say they are excluding jurors with preexisting views and race had nothing to do with it.

    1. Its a fair question.

      1. It may seem like a fair question, but the premise of Batson is that it’s OK to exclude jurors for non-racial reasons but not for racial ones. So lawyers circumvent Batson by asking questions that make good proxies for race but seem to sound in fairness.

        You can argue that Batson was terrible (some people do), but if you think Batson is a good idea (and it was recently reaffirmed by a Supreme Court majority led by Justice Kavanaugh), courts need to police questions that create these sorts of proxies for race.

        1. “courts need to police questions that create these sorts of proxies for race”

          In general, maybe so, but his death triggered months of protests/riots. If you attended one, you probably will vote to convict. Whites attended such protests and participated in such riots too.

        2. If you wanted to pick an example that is a proxy for race, BLM support is not aa good one. Its likely the worst juror for Chauvin would be a white female Democrat. OTOH, lots of blacks are anti-BLM and pro cop, because, you know, their neighborhoods are the ones that need police.

          1. Worst juror for Chauvin would be a female in general because men understand physical struggles in a way that women don’t.

            OTOH, a Black male well may have understood the necessity for physical force in a way that others might not — they know what someone strung out can do, may well have been personally victimized by it.

            And THEY will note that one of the cops present was Black.

            1. Don’t disagree. I was simply pointing out a specific sub-population that has an extremely high level of zealotry on this issue, and as you noted, almost no practical or statistical backing for their zeal.

              1. I think the reality is that what jurors actually believe is a lot more complex than racial stereotypes, even in a case like this.

                But LAWYERS want to use racial stereotypes, and look for proxies to do so.

                1. Lawyers want to use several stereotypes. Been that way and will remain that way.

                  Somin’s solution is a poor way to solve the quandry.

    2. “prosecutors can exclude white anti-BLM jurors and defense lawyers can exclude Black pro-BLM jurors, and each of them can just say they are excluding jurors with preexisting views and race had nothing to do with it.”

      It would seem to me that if either was to do this, it would seem to me that the racial discrepancy would be readily apparent to everyone. And as the majority of the people in BLM are White women, I don’t see the rationale here.

      I mean, like, people who show up in public with a “Kill The Pigs” sign really should be on a jury trying a police officer for an on-duty crime? R-e-a-l-l-y?!?!?

    3. The Black Lives Matter question seems a perfect example of this- prosecutors can exclude white anti-BLM jurors and defense lawyers can exclude Black pro-BLM jurors, and each of them can just say they are excluding jurors with preexisting views and race had nothing to do with it.

      Well, if race truly has nothing to do with it, prosecutors also would exclude black anti-BLM jurors and defense lawyers also would exclude white pro-BLM jurors. And to the extent they don’t, that would just amplify the pretext.

      So maybe questions like that are actually better for neutral jury selection over the long haul.

      1. They aren’t, because they are used to racially screen the jury.

        1. Anyone with vision can racially screen the pool without asking questions.

  3. “The Chauvin questionnaire, for example, inquires if jurors have been to a Black Lives Matter protest and, if so, what their sign said. ”

    As it should.

    We get it, you and the authors of the article want a conviction, not a fair trial.

    1. Yeah, that question should be on there. If you’re worked up enough to attend a protest one way or another, facts aren’t likely to matter to you.

  4. Prof. Somin, have you ever done a jury trial? Your CV would suggest that you probably haven’t (as does Prof. Feldman’s, and of course Ms. Kristian isn’t a lawyer.)

    I ask because the description of the jury selection process and criteria doesn’t seem reflective of my experience (it’s not even close to how things work in federal court, but it’s not particularly representative of state court). So I’m curious what your basis is for describing how jury selection actually works.

    1. My experience is that what Prof. Somin describes is more common in high publicity cases whereas selection is very streamlined in most cases.

    2. I’ve been through jury selection twice, in an area with a high number of engineers. I’ve known a few who got seated then rejected by the prosecution. For some reason, lawyers don’t like engineers.

  5. Frankly, the pseudo-science of the various CSI shows, leading to unrealistic standards, has likely done more harm to the jury pool than what Somin is talking about.

  6. Voting and serving on a jury should have the same qualifications, that means men who are net taxpayers with IQs above 100. Emotional women and 85 IQ blacks making decisions that affect other people are what is destroying America.

    1. Who do you trust to administer the test? As for weeding out emotional women…good luck with that.

      If we had voter ID and paper ballots and election day voting only, you know, we’d solve most of the problem, without this kinda of retrograde fantasy material about who can and can’t vote. Not that you’re wrong per se, but rather unrealistic.

      1. “If we had voter ID and paper ballots and election day voting only, you know, we’d solve most of the problem,”

        Are Republicans genuinely dumb enough to believe this stuff, or, instead, do they figure they must say things like this if the clingers are to have any chance to remain competitive a bit longer in national elections?

        1. Why don’t you for once post something germane to the issue at hand?

        2. 60% of registered Democrats support mandatory voter ID. I wish you’d be less of a troll. I know you’re capable of honest discussion. I wish you’d do it more often.

          1. Comment one: Limit jury pool and voting to White males of means — reject women, Blacks, the poor.

            Comment two: You’re not necessarily wrong, but rather unrealistic, Let’s stick with Republican proposals to limit voting. Also, a bit of misogyny.

            Comment three: That is dumb.

            Next two comments: Comment three is not germane and its author is a troll.

            Keep up the good work, Volokh Conspiracy.

            1. Keep up the trolling, clinger

      2. Universal free, ID. You cool with that?

        1. Universal for all citizens and legal resident aliens, yes.

        2. Universal free, ID. You cool with that?

          So everyone in the country gets an ID, no questions asked, and then slavishly shows it to the poll worker?

          Congratulations — you’ve officially eviscerated voter ID while creating an additional play-pretty layer of bureaucracy that pays lip service to it. Nirvana!

        3. Sure, I’m cool with that. All citizens, legal residents, tourists, and diplomatic personnel get secure ID. (Only the citizens get ID that authorizes voting, of course.) The illegals get deported, do they actually need government provided ID for that?

          I’ve long said that the fact that Democrats opposed voter ID instead of demanding the ID be free was very telling.

        4. Definitely.
          And then ask any voter to show the ID or at least enter the ID number and date of expiration on a mail-in ballot.

  7. “but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, ”

    the prosecution in this case certainly wants to exclude jurors with basic background knowledge such as

    1) normal life span after ingesting 3x the fatal dose of fentanyl
    2) absense of perichia in neck which is almost always present when individual dies of aphyxisation (ignore spelling)

    1. 1) normal life span after ingesting 3x the fatal dose of fentanyl –

      Normal lifespan after ingesting 3x the fatal dose of fentanyl being approximately 15-25 minutes. Floyd died approx 21-22 minutes after ingesting the drugs.

      1. There are two expected survival numbers — with and without CPR, etc. And then there is Narcan, which I do not believe was administered, and I fail to see why with credible witnesses (4 cops, store clerk) saying he was on something.

        Personally, I don’t know why the ambulance crew is being held blameless in all of this…

        1. DR Ed – “And then there is Narcan, which I do not believe was administered”

          Is it reasonable to expect that the police would have Narcan in their first aid kit? Are the Minneapolis police at fault for not carrying Narcan?

          Would CPR have helped – 1) Not likely with 3x the dose, 2) too much fluid in the lungs,

          Even then by the time the cops or an ER doctor would have recognized it would be fatal, it was too late. The initial signs of the OD occurred at approx 5 minutes, by then it was too late.

          gotta remember it was 3x – not 1x or 1.5 x or 0.5x

          1. Is it reasonable to expect that the police would have Narcan in their first aid kit?
            Yes. Many police do these days. Even more, the medical staff on the scene most definitely should have had Narcan available and been allowed to administer it.

            Are the Minneapolis police at fault for not carrying Narcan?
            Undetermined. There might be extenuating circumstances why they were not carrying Narcan. That would be an appropriate question to explore during the trial.

            1. Even more, the medical staff on the scene most definitely should have had Narcan available and been allowed to administer it.

              That would be valid except, A) by the 8-9 minute point after ingestion, Nothing could have saved him. B) He died around the 16-18 minute point which was about 4-6 minutes after he was on the ground with the knee on the neck C) the medical crew/ambulance arrived around the 18-20 minute point. which was after he had already died.

              1. ” by the 8-9 minute point after ingestion, Nothing could have saved him”

                Bullbleep.

                Narcotics suppress respiration and heartbeat. Narcan blocks the narcotic receptor(s) and hence *instantly* stops this.

                Now there is brain damage caused by lack of oxygenated blood going to the brain, and at a certain point the brain is no longer able to send the electrical signals to cause breathing and heartbeat, and that’s after a situation where the heart can be physically restarted with an electric shock.

                Beyond that, I’m not qualified to say anything more than (a) the protocol is to try Narcan — which doesn’t always work and (b) there are documented cases of unconscious persons, upon being administered Narcan (1) immediately awakening and (2) physically assaulting the rescuers because they ruined his “trip.”

                1. Also, the autopsy report states that he died in the hospital.
                  That he was *not* DOA…

                  1. Dr. Ed2 – Also, the autopsy report states that he died in the hospital.
                    That he was *not* DOA…”

                    he was pronounced dead at the hospital – However he was definitely dead at the scene, no heart beat, no pulse, no breathing – HE WAS DEAD – not 30 minutes after he quit breathing and after he heart stopped.

                    Dr. Ed2 -” by the 8-9 minute point after ingestion, Nothing could have saved him”

                    Bullbleep.”

                    Let us know of any medical experts can opine that he could have survived after ingesting 3x a fatal dose of fentanyl

                    1. Welcome to the 21st Century (although I was a “scoop & run” cowboy in the 20th…).

                      “No pulse, no heartbeat and no breathing” is NOT “dead” anymore. At the most basic, textbook says that you still have four minutes before brain damage even starts — and that’s if you do nothing, i.e. no CPR. This isn’t the 1960s (when it was…).

                      Your average ambulance is better equipped than the average suburban/rural hospital emergency room was in the 1960s. Your average EMT has better drugs and tools than the average MD did back then…

                      (The thing not being said about gunshot wounds is how many *fewer* people are dying from them.)

                      Bluntly, I don’t know what dimension of reality you inhabit, but the definition of lethal dose explicitly mentions tolerance.

                    2. Right about tolerance. The fact that he had 3 times the lethal dose for somebody not habituated to the drug doesn’t really mean it would inevitably have killed him… If he hadn’t been in bad shape to begin with.

                      Per the leaked report, he was a walking pharmacy with one foot in the grave, and it’s quite plausible he wouldn’t have lived out the day even if he had never encountered the police.

                      Still, he probably should have been administered Narcan, might have died in the hospital, instead.

                    3. Dr Ed you are only partially correct on drug “tolerance”. Initially tolerance goes up over the lifetime of the user. However, the body’s ability to tolerate drugs starts to weaken as the body detoriates.

                    4. I am a board certified Anesthesiologist with 30 years of experience.
                      I can remember the early days of cardiac surgery where we were learning how to do it and we routinely administered unbelievable doses of fentanyl.
                      A patient can survive a 10 x lethal dose of narcotics and survive if given supportive care.
                      Oxygen, I v fluids, positive pressure ventilation, muscle paralysis (if chest wall rigidity occurs) atropine for slow heart rates and narcan are all available in any modern ambulance.
                      Floyd could have been saved if given medical care.

                  2. Pretty standard procedure to save time and paperwork. They almost always load bodies in the ambulance and take them to the ER so someone at the hospital can declare them dead there. Nobody wants to wait around for hours, potentially, for the medical examiner to come out and do a report on scene. There was a time when the hospital might say ‘died in route’ but that seems out of vogue as it likely means more paperwork headaches for the paramedics.

                    1. True, but autopsy distinguished between blood sample taken when he was alive and one taken later — assuming that they are being honest on that, it means that person taking it thought he was still alive at the time.

          2. “Is it reasonable to expect that the police would have Narcan in their first aid kit?”

            Most (all?) cops carry it in the cruiser, and not just one dose. Because of fentanyl, they are routinely using 2 or 3 doses. It’s become a not-insignificant budget line item for departments.

            Are the Minneapolis police at fault for not carrying Narcan?”

            Would they be at fault if a cruiser ran out of fuel? Or if it got stuck in a snowbank because it didn’t have snow tires?

            BUT the issue I raise is with the ambulance crew — and Narcan has been a stocked drug for at least 20 years now — something that ambulances are supposed to have aboard, and that EMTs are supposed to know how to administer.

            Would CPR have helped – 1) Not likely with 3x the dose, 2) too much fluid in the lungs

            Opiate deaths are caused by a suppression of the nerve impulses which cause breathing and heartbeat. Fluid in the lungs (aka pneumonia, which is what it is medically called) is *not* a symptom of an opiate overdose. (The victim doesn’t live long enough…)

            It *is* a symptom of congestive heart failure — AND of Covid, which Floyd had. (We didn’t know that in May but we do now — lingering pneumonia is an aftereffect of Covid — and the legal implication of that is interesting.)

            “Even then by the time the cops or an ER doctor would have recognized it would be fatal, it was too late. The initial signs of the OD occurred at approx 5 minutes, by then it was too late.”

            A: OD is flatline — no breath, no beat — and that can be dealt with mechanically under optimum circumstances. (Otherwise, everyone undergoing heart surgery would die…)

            B: That’s not what the autopsy said killed him…

            gotta remember it was 3x – not 1x or 1.5 x or 0.5x

            1. When given intravenously, effects begin within two minutes, and when injected into a muscle within five minutes.[6] Another route it can be given is by spraying it into a person’s nose.

              3x

            2. he could not breath because of the fluid in the lungs – How is narcan going to reverse the foam and fluid in the lungs when it takes a minimum of 2 minutes to take effect when taken intraveniously, 5 minutes via nose spray.

              Your assertion that narcan would have helped saved his life in this case is delusional

              1. No, what is delusional is your belief that acute narcotic intoxication caused the fluid in the lungs. I have *never* heard of that….

            3. “gotta remember it was 3x – not 1x or 1.5 x or 0.5x”

              I forgot to include that — use of any drug creates a tolerance to that drug. This is why the cop brushing the fentanyl dust off his uniform with his hand can be in life-threatening jeopardy while the druggie whom he arrested wouldn’t even be affected by it.

              The cop, who doesn’t use it, has no tolerance to it — while the druggie (whose body is familiar with it) probably wouldn’t even get high from the minute amount absorbed through his skin.

              It’s the same thing with the .08 OUI standard — they take a bunch of legislators who do not drink and bring them up to the .08 BAC and they reasonably conclude that they are impaired and ought not be driving. BUT it would be a different story with Joe Sixpack because his body is familiar with ETOH.

              Remember that LD50 stands for “lethal dose for 50%” — and not the other half… Police officers whom I trust have told me of drunk driving arrests involving (a) a woman with a 3.3 BAC (whom he immediately shipped to the hospital as a CYA move) and (b) a male driver with a 4.1 BAC who had to be physically restrained by the state trooper.

              According to the textbook, both of those people should have been unconscious, the latter dead — it’s the tolerance. And the reason why opiates become lethal is that as tolerance increases, effective dose (to get high) and lethal dose inexorably approach the same dose.

            4. And about Narcan, I read a report where a cop gave it to his *dog* — the dog had contacted fentanyl on the pads of his feet, and apparently was exhibiting what the officer recognized as overdose behavior — and the concerned officer tried Narcan on his dog — and it worked….

              Narcan does work…

      2. I guess as a random anonymous schmuck on the Internet, you don’t have a professional ethical obligation not to just make up “facts.”

  8. Prof. Somin: Have you ever picked a jury?

    1. “Before joining the faculty at George Mason, Somin was the John M. Olin Fellow in Law at Northwestern University Law School in 2002-2003. In 2001-2002, he clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. ”

      I’d say no. In fact, it looks like he never practiced at all.

      1. It seems, on this issue, he is very epitome of the ivory tower intellectual with theory that doesn’t quite fit with reality.

        1. Well, the follow-up question is actually even more pertinent, if less obvious:

          Prof. Somin, how many jurors have you both participated in picking and interviewed after taking a case to verdict? That is how one actually learns about juries, and how to pick them.

          And it is a vanishing skill in our legal system, because the relatively tiny number of cases that go through trial to verdict is getting rapidly smaller. That problem would be an interesting subject for law professors to address, especially if they’ve actually picked a few juries and then interviewed the jurors afterwards.

          1. I’ve been involved in picking something north of seventy juries over the last forty-two years. Here’s a post I wrote in 2005, telling the tale of a jury selection in a particular civil case I tried that year, and critiquing a majority opinion by former Associate Justice David Souter, for whom Prof. Noah Feldman clerked a few years earlier. Justice Souter has no better understanding of jury selection in the real world than a bumblebee does, and this post frankly leaves me thinking that also to be true of Profs. Feldman & Somin.

  9. A jury of one’s peers probably started out when everyone (i.e., the potential jurors) actually had a great deal of knowledge about the issues in the case, as most were farmers or seamen. So, if a plaintiff claimed that a farmer had agreed to pay him $X to transport bales of hay, the jurors would likely have know whether that would have been considered an excessive amount and, therefore, the plaintiff might be lying. Or the jurors would have known that the time of year dictated the price. Also, if the hay was lost in transport, the jurors would like have known the customs for transporting those bales, and whether the defendant had taken reasonable care in doing so.

    So, perhaps, we need professional jurors. Also, most lawyers will tell you that they’re most concerned about who is the likely foreperson or other juror that will drive the deliberations; or perhaps one that will stand against the others (say, in a criminal case). The rest are just bodies. Professional jurors presumably would be more likely to all participate. Frankly, I’m not sure why jury deliberations shouldn’t be recorded, but sealed so that a verdict could be properly assessed.

  10. There is no better incentive to abide by all laws and avoid being a defendant than spending 5 minutes listening to the average person who manages to make it through the jury selection process.

    1. Er…”motivation”, not “incentive. Duh.

  11. Just empanel a jury and alternates ahead of time, and assign them to trials at random. Those questionnaires sound like an unconstitutional invasion of privacy. Besides, the United States has never had Peers.

    1. That’s great until you’re the defendant who ends up with a randomly select jury full of people who just happen to be biased against you.

      1. Less likely than a jury deliberately selected to be biased against me – – – – – –

        1. a jury deliberately selected to be biased against me

          If your lawyer is that bad you’re likely screwed anyway.

          1. If your lawyer is that bad you’re likely screwed anyway.
            . . . . meaning a fair trial is solely for the upper-incomes. Ouch!

  12. There is at least anecdotal evidence that having someone of a jury who has or claims knowledge of a particular subject can in effect lead a jury of average people far astray in line with their own prejudices.

    1. Or of course far towards accuracy, but away from where the system would otherwise direct them.

  13. Whether I agree with everything in this post or not, it is nice to see the Conspiracy finally starting to go back toward discussing genuinely interesting legal questions. Instead of endless garbage political posts where you know what the author of the post is going to conclude without having to go to the trouble of reading it first.

    1. (Sniping) but) I agree with your intent, even if we knew ‘what the author of the post is going to conclude without having to go to the trouble of reading it first.’

  14. Legal Insurrection also has a very in-depth, blow by blow coverage of what is happening inside the courtroom (along with legal analysis). It has been great reading.

    Personally, I don’t want lawyers, retired judges, or law professors on juries. 🙂

    1. I’ve skimmed some of it. It’s turning out to be a rather weak case against the cop as time goes on and as more data comes out.

      1. I think it was pretty clear from the beginning that it would be a very weak case.

        But that’s kind of normal in political prosecutions, no? They had a weak case against Zimmerman, and prosecuted him anyway. Weak case against Darren Wilson, thankfully they threw up their hands instead of prosecuting, too many witnesses I guess.

        Doesn’t stop people from rioting anyway.

  15. The current verdict, as I understand it (IANAL and have always been deselected for juries), is a simple yes/no guilty/not for every charge, with no explanations allowed or wanted. The jury room is sacrosanct, and what goes on there stays there.

    I thought of a different way of dealing with biased jurors: make the verdict detail every step of their logic, and discuss all the evidence presented. Allow the chain of logic to be appealed, based on either faulty logic or faulty interpretation of the evidence.

    “1: The ATM had $2740 in it at 9:45 when the previous customer left. 2. No one else used it until the video camera shows that at 10:01, a backhoe drove up and yanked it out of the wall. 3. The video camera sure looks like Bobby Burglar, the defendant. 4. We find the defendant guilty.”

  16. “Over time, the jury gradually changed”

    Was changed. It’s not a spontaneous evolution.

    Let’s not beat around the bush here: People with legal training are irate about the fact that the final decision is supposed to be made by us peons, and have labored mightily to transform jurors, grand and petite, into the proverbial mushrooms: Kept in the dark and fed BS, with the aim of transferring as much of the decision making as possible to themselves.

    I’m not saying there was some deliberate plot to this end cooked up in a smoke filled room. But at every step, the dice were weighted in favor of transferring power from jurors to lawyers.

    1. Seems to me OJ Simpson is free Brett. Juries still have a ton of power

      1. While juries still have a ton of power, that doesn’t negate Brett’s point. Can you do that, or do you agree with him?

      2. The OJ Simpson case could be just as easily explained as ‘the defense lawyers were more effective than the prosecution lawyers at manipulating the mushroom-jury’. That case does not necessarily demonstrate that juries retain power.

        1. Most easily explained by the extreme incompetence of the prosecutors.

          The glove, Mark Fuhrman.

        2. Juries absolutely retain power.

          What they’re systematically denied is the information on which to base using it. They’re manipulated by controlling what they know, starting with their legal right to judge the law as well as the facts.

          If you can control what the people with the power are permitted to know, 95% of the time you can control what they do with that power.

          1. I’d say 100% of the time.

          2. They’re manipulated by controlling what they know, starting with their legal right to judge the law as well as the facts.

            They have the same legal right to “judge the law” as you have to park in a no parking zone when there are no cops around. I.e., none. Not any. They take an oath to follow the court’s instructions on what the law is. “Judging the law” is a direct violation of that oath. And if the judge detects that any juror is doing this, he or she can be thrown off the jury.

            They have the power to judge the law. Nobody can stop them if they cover their tracks and do it. But they have no right whatsoever to do it, and that is absolutely the correct legal rule. We have judges to make the legal determiantion.

            1. “They take an oath to follow the court’s instructions on what the law is.”

              An oath binding them to not do their actual job.

              Look back at the cases celebrated as triumphs of the jury system, prior to and about the time the right was guaranteed us. William Penn, for example: He was guilty as Hell. He got off because of jury nullification. Likewise for Zenger.

              There is really no question at all that the jury trial we were guaranteed was a jury trial where jurors could nullify. For instance, President John Adams:

              “Therefore, the jury have the power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience? … [I]s a juror to give his verdict generally, according to [the judge’s] direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

              That juror’s oath you appeal to is the judiciary depriving Americans of the right to trial by jury we were guaranteed by the Constitution.

            2. Yet jury nullification is far from unknown.

    2. People with legal training are irate about the fact that the final decision is supposed to be made by us peons, and have labored mightily to transform jurors, grand and petite, into the proverbial mushrooms: Kept in the dark and fed BS, with the aim of transferring as much of the decision making as possible to themselves.

      What you don’t know about trial lawyers would fill the Library of Congress.

  17. “It’s one thing to keep jurors in a bubble once the trial has begun. It’s quite another to choose jurors who have chosen to live their lives in self-imposed bubbles.”

    That sounds fair.

    Of course, there’s another sort of bias we should consider – namely, jurors not wanting to be doxxed and targeted if they vote to acquit.

    1. For that reason alone, I would not serve on that jury. Or frankly, any other jury.

      1. If called you may have a hard time getting off.

  18. I like the cartoon of an old style courthouse with transoms, showing a coin being flipped in a room marked “jury”.

    Or the one of a haggard foreman leaning out the jury room door, saying to the bailiff, we want 11 ham sandwiches, 1 cheese sandwich, and 11 coffees, one hot tea.

  19. About ten years ago I was selected for a Jury for a trial about liability for an injury caused by a machine. During selection I was asked what I did for a living. I said that I designed advertising displays for stores. When we got to deliberations we were given a copy of the operator’s manual for the machine and pictures of the machine that caused the accident. I noticed that two micro-switches had been taped shut, disabling the automatic shutoff for the safety door. When I pointed it out, one of the other jurors asked why would that matter? I explained it and he replied “Where did you get your Engineering degree? I told him. I got called in front of the Judge and was asked why I didn’t say that I had an Engineering degree? I told him “I was never asked.” I was dismissed and an alternate took my place. I was asked what level of education did I have, what did I do for a living and that was about it.

    1. I’m an Education major and *I* would have known what a taped microswitch likely meant — I wouldn’t be certain, but I’d have a very strong suspicion that it was some sort of safety cutout that had been bypassed. Two switches — redundancy — QED a *serious* safety cutout.

      The bigger question is why plaintiff’s counsel didn’t (a) notice this and then (b) point it out to the jury. I also strongly suspect that bypassing microswitches is (c) an OSHA violation. Conversely, if this was a suit against a manufacturer, then why didn’t the manufacturer point out that the machine had been sabotaged in this manner?

      Competence of counsel is not just an issue in death penalty cases….

      1. Almost certainly it is an OSHA violation and punishable by a daily fine (one levied each day of the violation).

  20. I think a lot of it has to do with the Dunning-Kruger effect, people learn a little bit about something from the internet or a TV show (someone already mentioned the proliferation of procedural rime dramas) and think they are an expert on the subject. Both defense and prosecution have an interest in rejecting jurors who might ignore expert testimony in favor of their own opinions

  21. We’re still doxxing the jurors to threaten them into a conviction, right?

    1. The fact that Nexis Peoplefinder provides so much information on potential jurors is, itself, scary. And it serves to provide “reasonable doubt at a reasonable price” — I’d love to see an analysis of incarceration on the basis of assets instead of race…

  22. Where I practice, I’m lucky if I get three working brains in any panel of 8 (6 jurors plus two alternates). Jurors get to the “box” stage because they do not have anywhere to be. In other words, the outside world does not have any use for them (ahem). The three working brains tend to be retired folks.

    1. I’ve long felt that retired folks should be solicited for jury duty. They are diverse enough to avoid any bias, they have a lifetime of experience to bring, and they’d really enjoy it.

      1. I agree with Dr Ed. Look outside, the moon’s blue!

        1. What a BS snark.
          “if I get three working brains in any panel of 8 ”
          You really are an obnoxious, arrogant SoB

  23. Unless there is some super secret info they’re hiding Floyd likely died of a combination of poor health combined with drug use. In a sane world this would be immediately recognized and uncontroversial and routine procedure just like the thousands of other drug deaths they box away every year. Chauvin at most would be charged with manslaughter and probably less. But thanks to the intersection of COVID cabin fever with SJW demagoguery now it has to be a holy war.

    1. No, it’s worse than that.

      We are now an occupied country where terrorists demand that we comport the outcome of judicial proceedings to meet their criteria.

      Bluntly stated, we will be forced to sacrifice Chauvin for our own survival — and it largely reflects the issue raised by (of all people) Steven King in his _Storm of the Century_. See: https://en.wikipedia.org/wiki/Storm_of_the_Century

      We will hand off Chauvin for our own safety, justice be damned, and we deserve to be condemned for that…

    2. Unless there is some super secret info they’re hiding

      Apparently they’re hiding from you the fact that Chauvin knelt on Floyd’s neck for 9 minutes.

      1. If I bet you 1 million dollars I could kneel on someones neck for 9 minutes without killing them would you take it?

  24. What the city did, publicly announcing what turned out to be a preliminary settlement deal, during jury selection, ought to at least be cause for a change of venue. That was really underhanded and unnecessary. It called created more questions for a trial that is already going to be overly scrutinized. But I am sure the point was to help secure a conviction because these woke ideologues are not concerned about about actual justice…

    1. The city is desperately hoping for a conviction.

      Can you imagine the consequences of an acquittal? There must be *something* in that city that the thugs haven’t burnt yet…

      This does not speak well for the future of the republic…

  25. Ilya, you may want to look at the clusterf*ck that Massachusetts has for a jury system.

    As I understand it, they call a jury pool for every possible trial, knowing that the majority of them will be settled and hence won’t require a jury, because it is cheaper to bring in the (unpaid) jurors who will not be needed than to schedule jury trials. It is the ultimate example of whose time is worth more…

    Now the way out of this is to (a) not register to vote and (b) not answer the (annual) municipal census — otherwise, you *will* be called every three years to waste a day for trials that don’t exist.

    And this is not paid — while Massachusetts offers $50/day, that isn’t until the fourth day. And even then, $50 for 8 hours is less than half the mandated Massachusetts minimum wage of $13.50/hour.

    Yes, employers are *supposed to* pay you your wages for the day, but there is nothing preventing them from firing you — and mine did, which is why I now know how to avoid jury duty.

    Ilya, you deal with hypotheticals — I had to deal with NO JOB….

    1. “Now the way out of this is to (a) not register to vote and ”

      I had a late colleague, who brought me to UCLA and who never voted despite having strong political opinions, precisely for this reason. It worked for him.

  26. My own experience, when I was called (more than ten years ago now) to jury duty was: the defense lawyer walked into the room for the first step of selection. He said: “everyone who has ever been a victim of a crime, please raise your hand.” Well, I’m almost sixty and I’ve been mugged a few times, so I raised my hand. I, along with everyone else who had raised their hands, were all dismissed in short order.

    The case was a defendant accused of having assaulted a police officer.

  27. In any high profile case it seems unlikely that you can find a jury that has not heard anything about the case. If you do find a juror that know nothing about the case he likely does not care enough to even make a decision. It would seem that rather than look to see if what information about the case a potential juror has, you would be smarter to seek jurors that will listen to the arguments and evidence presented and make a decision. A person that might have a opinion but who is willing to be open minded and change that opinion when presented with facts. These would be best determined by kind of questions a psychological profiler might use.

  28. This biased judge should be removed from the case.

    There is no actus reus.

    A fentanyl level of 3 is fatal. Floyd had a level of 11. Strangled people cannot keep yelling for their mothers.

    The police may be faulted for not administering Narcan nasal spray if that has become a standard of due police care. A police expert would have to attest to that first.

    1. While you can try obfuscation, the fact remains that George Floyd would be alive had Officer Chauvin not kneeled on his neck for over eight minutes. This is the typical gaslighting to try to rewrite what happened on May 25, 2020. It seems that when a police officer kills a black man there is some excuse. Yet white suspects, like Robert Aaron Long who shot six people is brought in alive.

      1. “the fact remains that George Floyd would be alive had Officer Chauvin not kneeled on his neck for over eight minutes.”

        That is *not* a fact.

        Reality is that we don’t even know if that is what killed him — between the fluid in his lungs, his poor health, and the drugs he was on, he could have died in the cruiser.

        And (a) cops kill more White men than Black, and (b) an encounter with the police is more likely to be lethal for a White man.

        1. We know the corner’s report indicated it was a homicide. We accept the corner’s report for other death why not here?

        2. And the rate of police officer killing black men is higher.

    2. The problem is that knee-on-neck is the standard of police care — it is what the police were taught to do.

      That’s why trying the officer is a gross miscarriage of justice.

      1. Nuremberg rejected the “just following orders” defense.

        1. How about “just following orders that almost never result in anybody dying”?

          1. How about following orders to “do what the medical expert told you was the medically right thing to do”?

            Chauvin*may* have a BS in Law Enforcement and a CPR certificate — he most definitely is not a MD and if MDs trained him to do something TO HELP PEOPLE, then that is a far cry from what was raised in Nuremburg.

            No one in Nuremburg claimed that cyanide was a healthy thing to breathe.

    3. You are completely wrong when you say that people cannot not survive a certain Fentanyl level.
      If given supportive medical care, you can survive phenomenal amounts of fentanyl.
      As an anesthesiologist with 30 years experience, I can remember when cardiac anesthesia was first invented and we gave truly unbelievable amounts of fentanyl.
      Patients were unconscious and intubated in the intensive care unit for days post sternotomy.
      That was then. It’s different now. But we know that patients can survive if paralyzed, intubated, ventilated, and given pressors and fluids.
      All of those are available in any modern ambulance.

  29. Selecting a jury of literal half-wits worked for O.J. Simpson. No wonder they recommend it.

  30. “a jury of literal half-wits worked for O.J. Simpson”

    No and incompetently prepared prosecution and Johnnny Cochran are what worked for O.J.

    1. You are correct. The prosecution was very unprepared for this case. They were likely use to poor defendants that could not afford legal talent. I think the most credit should go to Robert Shapiro who recognized the weaknesses in the case and brought the talent to Simpson’s team. That included Cochran, Bailey and Scheck.

      It is true that the jury in the Simpson case had limited educations. I believe none had more than a high school education. The prosecution relied on technical evidence that included heavy statistics. It was simply unfair to expect the jury to be able to understand some of the evidence presented.

  31. Jury composition, like all other human behavior, is determined by incentives. Make jury service compulsory but make it possible to get out of it with the right excuse, and you get juries of people too stupid to get out of it (plus the occasional person with an ulterior motive to be there). Make it voluntary, you get more of the people with the motive.

    If you want average people, then, make it compulsory with no excuses accepted. Which can be done humanely if you pay them a wage close to what they would earn elsewhere.

  32. I passionately and fervently disagree with this article. As a criminal trial attorney, the thought of allowing more potential jurors onto a criminal trial jury in cases in which those potential jurors have detailed knowledge of the case based on media accounts is malpractice. To think that people would watch incomplete and very likely biased media coverage of a potential crime and then come to some sort of malleable conclusion as to guilt or innocence is laughable. If those same people were to claim that they could put their already-formed conclusions aside and keep a completely open mind, then I would classify those claims as nothing short of completely unrealistic/inhuman. Especially from a defense perspective, the thought that the media would fairly, accurately, and comprehensively cover a defendant’s side of a story in a potential criminal episode as opposed to covering nearly 100% of the law enforcement side is equally naive and inaccurate. I seriously question whether Mr. Somin has adequately taken into account how real-world criminal jury trials work when it comes to non-police officer defendant cases. I doubt the existence of the potential juror who has watched media coverage of a case involving a civilian criminal defendant who says: “the cops have told me through their allies in media all the reasons why this defendant is no question guilty BUT I’m open-minded and can be convinced otherwise by the defendant’s attorney.” Come on. Talk about burden-shifting.

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