Sunday’s post here asked where on earth a New York prosecutor could have read, as the state claimed in a recent Second Circuit Batson case, that “that heavy-set people tend to be very sympathetic toward any defendant.” Lawyer and jury consultant Mark Stanziano wrote me wondering if Clarence Darrow might have said it. “Darrow had lots of thoughts about heavy set people, thin people, Baptists, Methodists, lots of stereotypes,” Mark wrote. “It was the way he saw the world and the people in it. Clearly, a different age, but one the prosecutor may have ‘read about.’”
Mark pointed me to an article Darrow wrote in the May 1936 issue of Esquire, called "How to Pick A Jury." It’s set out in full as part of a Darrow site maintained by Prof. Douglas Linder of the University of Missouri-Kansas City School of Law. Overweight jurors aren’t mentioned in the article; but stereotypes definitely are.
“There is no sure rule”
You may have seen this article before, but read it again. It’s an amazing document. (Click through to Linder’s site and read the whole thing, not just the excerpts here; I’d reprint it all, but I can’t quickly figure out the copyright situation.) Some of it is the kind of astute and measured advice you’d hope for from Clarence Darrow, like remembering who will empathize with your client, and what our “entire environment” teaches us:
If the client is a landlord, a banker, or a manufacturer, or one of that type, then jurors sympathetic to that class will be wanted in the box; a man who looks neat and -trim and smug. He will be sure to guard your interests as he would his own. His entire environment has taught him that all real values are measured in cash, and he knows no other worth. Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.
His reminder not to rely on a single quality of any juror is modern and apt:
Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called "twelve men, good and true." In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. Understanding of all this cannot be obtained too bluntly. It usually requires finesse, subtlety and guesswork. Involved in it all is the juror's method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence and origin.
He is cutting-edge when he reminds lawyers that individual experiences easily trump stereotypes:
There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.
“If a Presbyterian enters the jury box and carefully rolls up his umbrella . . .”
But when you come to Darrow’s advice on “the nationality, politics, and religion of the person examined for the jury,” you’ll wonder how he ever won a case. Here’s his cheerfully broad-brush rundown of potential jurors for the “underdog”:
An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.
An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.
If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.
If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.
Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God's word for that.
As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don't ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And do not, please, accept a prohibitionist; he is too solemn and holy and dyspeptic. He knows your client would not have been indicted unless he were a drinking man, and anyone who drinks is guilty of something, probably much worse than he is charged with, although it is not set out in the indictment. Neither would he have employed you as his lawyer had he not been guilty.
And so on, through Christian Scientists, the wealthy, and those who laugh easily and those who do not. (“By all means, choose a man who laughs.”)
“Then too,” Darrow says, “there are the women,” then newly eligible for jury service:
Women still take their new privilege seriously. They are all puffed up with the importance of the part they feel they play, and are sure they represent a great step forward in the world. They believe that the sex is co-operating in a great cause. Like the rest of us, they do not know which way is forward and which is backward, or whether either one is any way at all. Luckily, as I feel, my services were almost over when women invaded the jury box.
[In a trial a] few years ago . . . the courtroom looked ominous with women jurors. I managed to get rid of all but two, while the dismissed women lingered around in the big room waiting for the victory, wearing solemn faces and white ribbons. The jury disagreed. In the second trial there were four women who would not budge from their seats or their verdict. Once more I went back to the case with distrust and apprehension. The number of women in the jury box had grown to six. All of them were unprejudiced. They said so. But everyone connected with the case was growing tired and skeptical, so we concluded to call it a draw. This was my last experience with women jurors. I formed a fixed opinion that they were absolutely dependable, but I did not want them.
It’s remarkable that there was a day when you could say things like this, much less publish them in a national magazine.
The challenge now
I can’t help wondering whether, in the early part of the last century, stereotypes like this might have been more useful than they are now. That was a world when immigrants often lived together in tight communities and neighborhoods, often doing business and worshiping in the old language. Perhaps the thinking of a group member then matched that of the group more closely than it does today. And when it didn’t match – as Darrow’s better advice shows he knew it didn’t always – it was an era when it was habitual to think and talk in stereotypes anyway.
We need to leave Darrow’s stereotyping behind, but not his effort, or his insight. Darrow actually draws some wonderfully accurate psychological sketches in these wacky paragraphs. What’s different is that the types aren’t linked to gender, religion and heritage anymore, if they ever were. What today’s lawyer needs to do is sense the unique character of the Scotch/Irish/Scandinavian banker juror, raised Catholic and now a practicing Buddhist, married to a Jewish social worker with whom he has four children, one a disabled adult.
And by the way, that juror is overweight. If you strike him, or keep him, is that the reason?
(Public domain photograph of Darrow at Wikipedia.)
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