Illustration by Matt Kindt
After potential jurors were ushered into a St. Louis County courtroom in October 1993, they learned that not only would they decide theguilt or innocence of Herbert Smulls, but also they would determine whether he lived or died. Smullswas accused of robbing jewelry-store owners Stephen and Florence Honickman. During the robbery, Smulls allegedly shot the couple. Florence lived. Stephen did not.
What the potential jurors might not have realized was that they, too, would be judged—sized up, scrutinized and categorized by the lawyers as each tried to assemble the best jury for his or her side of the case.
Smulls faced six charges, including one of first-degree murder. He’d been tried only a few months earlier, in August. The original jury found him guilty of first-degree robbery but was hung on the remaining charges. This was his second trial. St. Louis County assistant prosecutor Dean Waldemer sought the ultimate punishment. Public defender Karen Kraft’s job was to keep Smulls alive.
The outcome would depend as much on which jurors they selected as on the facts of the case.
The first task for the attorneys was to weed out all potential jurors who confessed that they’d already, before hearing the evidence, made up their minds about Smulls’ guilt or innocence. That’s grounds for automatic removal, and there’s no limit on the number of these “for cause” strikes an attorney can make.
Attorneys can also make a limited number of peremptory challenges: objections to a potential juror’s service for almost any reason—except race or gender. In the 1986 decision Batson v. Kentucky, the U.S. Supreme Court ruled that lawyers could not strike jurors on the basis of race; later, the restriction was extended to strikes based on gender. Proving that a strike was made for one of the forbidden reasons, however, is difficult.
In a death-penalty case, lawyers can use as many as nine peremptory strikes. According to trial transcripts from the Smulls case, Waldemer and Kraft fought hard over one of those strikes: The prosecutor wanted to remove the last African American, a woman who sorted mail at Monsanto, but Kraft challenged the strike, claiming that it was racially motivated and citing the Batson decision.
The issue was bounced back to Waldemer, and he was given a chance to explain.
“It’s been my experience in the nine years that I’ve been a prosecutor that I treat people who work as mail sorters and as mail carriers ... for the U.S. postal office with great suspicion,” he said. “In my experience, in many of the trials that I’ve had, [they] are very disgruntled, unhappy people with the system and make every effort to strike back.”
In addition, he said, the potential juror had “glared” at him, and her manner of dress—wearing a beret one day and a baseball cap with sequins on it the next—also gave him pause: “I just felt she wouldn’t be a good state’s juror.”
Kraft wasn’t buying it. She said she didn’t detect “any type of attitude” from the woman. She labeled his reasons “pretextual”—in other words, a cover story to conceal his true motive, assembling an all-white jury.
Once a strike is challenged, it is up to the trial judge to decide whether it was proper. But St. Louis County Circuit Judge William Corrigan made it clear that he didn’t relish his role. “I don’t know what constitutes black,” he said. “Years ago, they used to say one drop of blood constitutes black. Can somebody enlighten me of what black is?”
Corrigan said that it should be up to the defense to first prove “who is black and who isn’t.” Nevertheless, he said, he was denying the challenge. The strike was allowed to stand, the potential juror was removed from the panel and the case proceeded to trial. The jury convicted Smulls of first-degree murder and imposed the death penalty. Years of appeals would follow.
One of those appeals—but by no means the last—ended up before the Missouri Supreme Court in 2002. Although the court upheld the strike and the conviction, Missouri Supreme Court Chief Justice Michael Wolff wrote a concurring opinion urging a reduction in the number of peremptory strikes allowed during jury selection:
“The discomfort arises from the essential truth about jury selection—it is based on generalizations about a venireperson’s [juror’s] race, ethnicity, religion, sex, socioeconomic status, occupation, neighborhood, among other factors.”
When lawyers pick a jury, time is limited, and the stakes are high. Juries decide whether a doctor hurt a patient, whether a company broke a contract, whether a nursing home provided adequate care; they also decide whether a person sold drugs, swindled the elderly or snuffed out a life. Money, freedom or a lethal injection—the outcome hinges on the jurors’ vote.
Gerard T. Carmody, a partner with the Clayton law firm Carmody MacDonald, says, “Jury selection is probably the most important part of the trial. In my view, jury selection can dictate whether the case is won or lost.”
Spencer Farris, a personal-injury lawyer with the firm Zevan Davidson Farris Stewart, notes the flaws in the process: “Sometimes, I’ve got an hour or two to learn what I can, so a lot of what we do is deal with generalities and prejudices—ours as much as jurors’.”
In his 2002 opinion, Wolff noted that those who “study jury behavior and teach trial advocacy tell us that certain types of people are preferred jurors depending on the particular type of case ... It is commonly believed, for instance, that African-American jurors view the death penalty less favorably than their white counterparts.”
Wolff noted that there are textbooks on trial techniques that outline the belief that “African Americans, Hispanics, Irish, Jews, French, Italians and other Mediterraneans” are good plaintiff’s jurors because they respond to emotional appeals. “Germans, English and Scandinavians” are said to be better for the defense side of a case.
In high-profile cases, lawyers often rely on jury consultants and focus groups to forecast jurors’ reactions based on stereotypes. In multimillion-dollar clashes between commercial titans, for example, it’s hard to predict who might stereotypically favor the plaintiff or the defendant. Jury consultants might also be helpful when a lawyer is trying a case in an unfamiliar community, such as a faraway rural county or another state.
Carmody, who handles commercial litigation, condemnation, real-estate and employment cases, has used jury consultants and focus groups to profile the best and worst jurors for his cases. The main advantage such consultants and focus groups provide, he says, is aid in formulating trial themes; they isolate “the soft spots of the case and highlight the difficult points.”
Although Carmody has used out-of-town jury consultants for St. Louis cases, he doesn’t rely as heavily on their advice about the best jurors to select. “For the most part,” Carmody says, “I feel that I know more about the community and the predilections of most of the people we see.”
Carmody tries many condemnation cases, which involve property. He carries a ZIP-code map when selecting a jury. If the case involves a property dispute in Richmond Heights, a juror from Florissant might not have a sense of the property’s value.
Of course, where someone lives and in what type of dwelling open a path to all sorts of generalizations. Knowing whether a potential juror is a downtown loft dweller, a subdivision homeowner in Arnold or an apartment renter in Spanish Lake provides clues whereby lawyers can guess the individual’s politics, education, ethnicity and profession.
Indeed, occupational choices often hold great sway in juror strikes.
Farris says that if he’s trying a medical-malpractice case, he might not want a physician serving on the jury. If he’s handling an accident involving a tractor-trailer, he might not want a truck driver.
Thompson Coburn partner David Dick defends railroad companies that have been sued by workers for on-the-job injuries. “Generally speaking, in a personal injury case where I represent the defendant, I prefer white-collar workers over blue-collar workers,” he says, explaining that he’s looking for “a higher level of education and people in management.”
But Dick stresses that generalities are just the beginning, a cautionary flag signaling the need to question a potential juror closely. He mentions a case he defended that involved a back injury and a claim that the injured worker could not return to his job. When Dick asked whether any of the potential jurors had ever undergone back surgery, one man raised his hand. The potential juror, a blue-collar worker without a lot of education—someone who generally would not be expected to be a favorable defense juror—admitted that not only had he undergone back surgery, but also that he had returned to work after two months. Dick asked about the type of work the man did, and he answered, “I move 50-pound bags of flour off a conveyor belt.”
In that case, the initial stereotype favored a strike, but further questioning revealed that the potential juror was good for Dick’s case.
Chris Goeke, a former prosecutor with the St. Louis circuit attorney’s office who now handles both criminal-defense and civil cases with the law firm J. Christian Goeke, says that in criminal cases, lawyers also make occupational generalizations.
According to Goeke, a prosecutor may strike postal workers by arguing, “They are very unfair to the state because of the amount of surveillance that takes place in postal facilities. Postal workers tend to want a videotape of crime before they are willing to convict.”
Social workers might be removed because of a fear that they “can’t be fair when it comes to punishment.” Even firefighters have been taken off panels by prosecutors, says Goeke, when a police officer will testify in the case. The reasoning? “Police officers and firefighters don’t get along.”
A good prosecutor, when challenged, can usually come up with a lawful reason for striking a juror. Stressing a potential juror’s occupation is one way to go about it—and then it’s up to the defense to show that the reason is insincere.
Kraft, the public defender who represented Smulls, says that the defense lawyer then “looks for the similarly situated jurors who were not African-American.” For instance, in the Smulls case, if the prosecutor who struck the black juror had left a white postal worker on the panel, the argument that the removal was based on race would have been instantly strengthened.
That’s not, however, what happened. The prosecutor did remove a white female postal worker from the jury panel, yet that fact didn’t doom the inquiry, at least not according to the 8th U.S. Circuit Court of Appeals.
On November 1, 2006, the court sent the case back for the trial court to reconstruct the circumstances surrounding the Batson challenge. The reason hinged not so much on the prosecutor’s strike as it did on the trial judge’s reaction. In a decision written by Judge Kermit Bye, the 8th Circuit panel blasted the trial judge for his “failure to afford defense counsel an opportunity to respond to the prosecutor’s racially-neutral reasons.” The decision accused the trial court of being “from the outset antagonistic toward the Batson challenge and unwilling to engage in the sensitive inquiry” that the challenge required.
Now, 14 years after Herbert Smulls was convicted, a new judge will have to try to determine whether the strike stands—a task that the 8th Circuit has acknowledged may be impossible. If so, Smulls will get yet another new trial—and the lawyers in the case will get a third crack at selecting the jury.
