Episode 6: Jury Selection

“Hear ye! Hear ye! All rise,” the bailiff intoned as all stood within the courtroom. “The Fifth District Court in and for our great Commonwealth, the Honorable Jordan Connor, presiding. God save this state and this honorable court. All those with business before this court draw near; you will be heard.”

Judge Connor walked in and stood at his podium. “Be seated. Seat everyone you can, bailiff,” he ordered, “and those that can’t get seats, let them stand around the wall.”

The judge gave the bailiff a moment to finish getting the audience seated. A standing-room-only audience packed the courtroom.

Bang! “The court will come to order,” Judge Connor commanded. “I am now calling for trial the case of the State versus Michael Phillip Andrews.”

Senator Travis rose. “Your honor, before we get started, I want to have a little talk with the counsel on the other side and with the court on the question of witnesses here, before we do anything else. It is rather informal.”

“Go ahead,” the judge commanded.

Travis pulled a legal pad and flipped to a particular page.

“We have arranged for a number of doctors, scientists, and experts, all busy men and women who have volunteered their time to appear as expert witnesses for the defense. We do not want to take them away from their work any longer than we need to, so I thought we ought to get an idea of just how soon we might need them to appear in your court after we get started.”

The Courtroom

“A reasonable inquiry, Senator.” The judge turned to the prosecution. “How long do you anticipate it will take to empanel a jury, Mr. District Attorney?”

“That’s hard to say,” the district attorney was evasive. “We cannot anticipate what we might have to contend with, and whether we might have trouble in the qualifications of our jurors. If we don’t have any trouble, so far as the state is concerned, it may only take a short time: a day or so.”

“A day?” the judge appeared skeptical.

The district attorney leaned over and conferred with Senator Castillo. Then he stood up straight. “So far as we are concerned,” he assured the judge, “it will take perhaps a half day.”

“Your honor, this case has had a great deal of publicity,” Senator Travis rose and addressed the court. “As the court knows, in any case of this sort, with all the publicity we’ve had, it may be very hard to get an impartial jury. We may get one quickly. So far as the defense is concerned, we ought to have a reasonable liberty of examination, to see that we DO get as impartial a jury as possible. As people generally have some opinions already on such subjects, I apprehend it might take some time to get a jury.”

“Senator,” the judge replied, “is there any reason why we should not proceed with making up the jury? When the jury is made, the state, of course, introduces their evidence first, then couldn’t you notify your witnesses to be here after the jury is made?

“I think so,” Senator Travis agreed. “I assume that your honor and counsel on the other side will be fairly lenient with us at times, if we need it.”

“Sure,” the judge confirmed. “We will extend you any reasonable courtesy we can. Does the state have any preliminary concerns about scheduling, informing expert witnesses, or any other such matters before we begin?”

The district attorney looked at Senator Castillo who shook her head “no.” He rose. “No your, honor. We are ready for jury selection.”

“Gentlemen,” the judge turned to address Senator Travis, “is the defense ready to proceed with the selection of the jury?”

Senator Travis rose. “Yes, your honor.”

“Bailiff,” the judge commanded, “draw the name of the first juror.”

“W.F. Roberson, Number 12,” the bailiff announced and motioned the man forward. The prospective juror took his seat in the witness box.

“Do you swear or affirm that you will tell the truth, the whole truth, and nothing but the truth?” the judge asked.

“I do,” he replied.

“Are you a resident of this county?” the judge continued.

“Yes, sir,” Roberson replied.

“Are you related by blood or marriage to Dr. Andrews, or to any of the counsel representing the state or the defendant?”

“No, sir.”

“And have you formed or expressed an opinion as to the guilt or innocence of this defendant, Dr. Andrews?” the judge continued.

“Well, to some extent, judge,” he acknowledged.

“Have you spoken to any of the witnesses,” the judge inquired further, “or to anyone else who professes to know the facts of this case?”

“No, sir.”

“General rumor, then?” the judge asked.

“Yes, sir.”

“And do you think you can wholly disregard your opinion and go into the jury box, and try the case on the law and the evidence, and render a fair and impartial verdict?”

“I do, sir,” the juror confirmed.

“This man is a competent juror,” the judge proclaimed. “I’ll pass him first to the state.”

Senator Castillo rose.

“Senator Castillo,” the judge addressed her, “you will be examining this prospective juror for the state?”

“Yes, your honor,” the senator confirmed. “But if it please the court, this is not the U.S. Senate, so I believe the title, ‘Senator,’ is not appropriate for us to use in this forum. If the court has no objection, I would prefer to be addressed by this court as ‘Profesora Castillo,’ your honor.”

“Objection!” Senator Travis rose to his feet. “Professor-AH Castillo? Sounds more like a sneeze than a title of address. I was unaware my senatorial colleague was possessed of so distinguished an academic rank.”

“It’s an adjunct professorship!” President Buchmann rose from her seat in the audience just behind the prosecution’s table. “Just bestowed in recognition of the senator’s…”

“You are out of order,” the judge banged his gavel. “Be seated.”

“Your honor,” Senator Castillo elaborated, “I hold the Doctor of Philosophy degree, ‘Honoris Causa,’ in Social Justice, and I have received an appointment as Adjunct Professor of Social Justice. I am the Zebulon and Mindswell Winthrop Endowed Lecturer in Moral Philosophy at the university, where I have been teaching a special class in social justice to our young scholars. In recognition of my academic accomplishments and Hispanic heritage, I respectfully request this court address me as ‘Profesora Castillo.”

“Why, your honor,” Senator Travis drawled, “that might prejudice the jury in this here academic town. I respectfully request that our embryo professor – pardon me, our embryo professor-AH – NOT be called by that title in this courtroom.”

The judge sighed, considering how to resolve the dilemma placed before him. “President Buchmann, please approach the bench.”

They conferred in hushed tones. The president was clearly not happy with whatever the judge was proposing. Finally, President Buchmann turned to face the courtroom.

“I am happy to announce,” she proclaimed with a grimace that belied her words, “I do believe the Board of Trustees will not object if the University also awards the title of ‘temporary honorary adjunct professor of… social justice’ for the duration of this trial to Senator Travis as well.”

The judge turned to face Senator Travis. “Satisfied, ‘Professor’ Travis?”

The newly minted professor preened, holding out the lapels on his jacket. “Temporary Honorary Adjunct Professor o’ Social Justice Travis.’ That kind of just rolls off the tongue. Your honor, the defense is indeed satisfied.” He resumed his seat.

“Profesora Castillo,” the judge motioned toward the prospective juror, “you may begin your examination.”

Castillo rose and approached the prospective juror. “Mr. Roberson, are you satisfied that you could render a decision in this case with perfect fairness to both sides?”

“Yes, ma’am,” Roberson confirmed, “I can.”

“We’ll take him,” Castillo told the judge and returned to her seat.

“Professor Travis?” The judge offered the defense the opportunity to examine the prospective juror.

“Have you attended any of the ‘social justice’ rallies at the courthouse, Mr. Roberson?”

“No, sir.”

“Have you heard of ‘Critical Race Theory,’ ‘Intersectionalism,’ or ‘Multidimensional Oppression’?”

“No sir,” Roberson replied.

“Don’t define them for me, sir,” Travis continued his examination, “but do you think if I asked you, you could tell me what each letter stands for in the expression ‘LGBTQIA’?”

Roberson wrinkled his forehead in thought before replying, “I’m not sure as I know what they all stand for.”

“Can you tell me, what is a woman?”

“Well,” the juror looked up, pondering the question, “an adult human female?”

“Good enough for us. We’ll take this juror,” Travis confirmed, resuming his seat.

“Your honor,” Castillo rose. “I have more questions for Mr. Roberson.

“Profesora Castillo,” the judge answered, “you have already accepted this juror. In the future, instead of accepting a juror, you may merely pass a juror to the defense and reserve judgement, or of course, you may challenge for cause, or you may exercise one of your three peremptory challenges.”

Castillo sat down, frowning.

“Please take your seat in the jury box, Mr. Roberson,” the judge instructed. “Next juror?”

“Number 34; J.W. Dagley,” the bailiff announced.

The next juror was sworn in and took a seat in the witness box.

“Are you a resident of this county?” the judge asked.

“I am,” the prospective juror replied.

“Are you related by blood or marriage to Dr. Andrews, or to any of the counsel representing the state or Dr. Andrews?”

“No, sir.”

“And have you formed or expressed an opinion as to the guilt or innocence of this defendant, Dr. Andrews?” the judge continued.

“Yes, your honor,” she acknowledged.

“Have you spoken to any of the witnesses,” the judge inquired further, “or to anyone else who professes to know the facts of this case?”

“No, sir,” she answered.

“Merely, general rumor, then?” the judge asked.

“I have seen some news stories, your honor.”

“And do you think you can wholly disregard those stories and any opinions you may have formed from them and go into the jury box, try the case on the law and the evidence, and render a fair and impartial verdict?”

The juror considered her answer a moment before replying, “I do, sir.”

“Competent juror,” the judge proclaimed. “Profesora Castillo?”

“How do you prefer to be addressed?” Castillo rose to her feet, “Ms., Miss, Missus?”

“I go by Ms. Dagley,” the juror confirmed.

“Ms. Dagley,” Castillo beamed, “Are you satisfied that you could render a decision in this case with perfect fairness to both sides?”

“Yes, ma’am,” she confirmed, “I can.”

“Pass to the defense,” Castillo told the judge and returned to her seat.

“Your juror, Professor Travis,” the judge declared.

“Have you attended any of the ‘social justice’ rallies at the courthouse, Ms. Dagley?”

“Yes, sir.”

“One or both?” Travis asked for clarification.

“Both of them,” she confirmed.

“What did you think of them?” Travis enquired.

“I was excited to see Senator Castillo,” Ms. Dagley confirmed.

“So you voted for her?”

“I did,” she confirmed.

“Are you employed, Ms. Dagley?”

“Yes; I’m a teacher.”

“Oh?” Travis smiled. “What do you teach?”

“2nd grade at Clinton Elementary School.”

“That must be a very challenging and rewarding job. Now, you told the judge you had formed an opinion of Dr. Andrews,” Travis pointed out. “I’m not asking you to share that opinion, but are you confident you’d be able to set aside your opinion, listen to the facts and evidence, and apply the law to deliver a fair decision?”

“I do,” she confirmed.

“A lot of people specify what pronouns they’d like people to use when they refer to ‘em,” Travis pointed out. “Like on their social media or emails or elsewhere online. Do you?”

“Yes,” she acknowledged, “I do.”

“So I can try to avoid any offense,” Travis qualified his question, “what pronouns do you prefer I use?”

“She/her,” Ms. Dagley confirmed.

“Thank you,” he beamed another campaign poster smile at her.

“Have you ever taught anything related to gender identity to your second graders?” Travis asked.

“Yes,” she acknowledged.

“Would you please summarize for the court what you teach your second graders?”

“We teach our second graders medically accurate names for their private parts,” she began. “We tell them there are some body parts that mostly just girls have and some parts that mostly just boys have. You might feel like you’re a girl even if you have body parts that some people might tell you are ‘boy’ parts. And you might not feel like you’re a boy or a girl, but you’re a little bit of both. No matter how you feel, you’re perfectly normal!”

“Do you think,” the senator frowned, “it’s appropriate to be teaching this material to second graders?”

“It’s important we affirm and support all our children no matter what their gender identity,” Ms. Dagley proclaimed, prompting scattered applause from the courtroom.

“Order!” Judge Connor banged his gavel.

“Can you tell me what is ‘a girl’?” Senator Travis asked.

“A girl?” She paused and looked upward in thought, “I suppose a girl is anyone who claims that as their identity.”

Senator Travis frowned. “Isn’t that a circular definition?” he asked. “I mean, that’s like saying a table is a thing that’s a table.” He rested his hand on the table.

“We’re talking about children, not tables,” Ms. Dagley admonished him like she would a second grader.

“Let me try again,” Senator Travis took a deep breath. “How would you define the word, ‘girl’?”

“I would ask the child what it means to them,” she insisted. “A girl is any child who says she’s a girl.”

Senator Travis set his pad down on the table with one hand and palmed his face with the other. Then he sat on the corner of the defense table.

“When the child says that she is ‘a girl,’” he held up finger quotes to emphasize “a girl,” trying again to get an answer to his question, “what IS IT that the child is saying she is?”

“If a child says she’s a girl,” Ms. Dagley lectured him, “we have to simply respect that answer, treat them with dignity, and we have to accept them for who they are.”

“But WHAT IS IT that the child is saying she is when she uses the term, ‘girl,’ to describe herself?”

“I don’t feel very safe right now,” Ms. Dagley complained.

“Objection; asked and answered.” Senator Castillo rose. “Your honor, the defense is badgering this potential juror. Ms. Dagley has already answered that question multiple times already.”

“Sustained,” the judge ruled.

“Let’s take a different approach then,” Senator Travis leaned back. “You clearly have some very strong beliefs about what it means to be a girl, is that safe to say, Ms. Dagley?”

“Yes, I do,” she confirmed.

“Are you very confident in these beliefs, Ms. Dagely?”

“Yes, I am,” she insisted.

“And do you think you can set aside these rather strong opinions and render a fair judgement in this case?”

“I do.”

“Are you sure you have no opinion as to the guilt or innocence of the defendant?”

“I am.”

Travis looked at her and shook his head. “I’m concerned you may have difficulty approaching this case with an open mind.”

He turned to face the judge.

“I challenge for cause, your honor,” Travis declared.

“Your honor,” Castillo rose, “Ms. Dagley has said she has no opinion as to the guilt or innocence of the defendant. If the defense is going to challenge every juror who believes that gender is not biologically determined and the state challenges every juror on the other side of the question, we will exclude the entire jury pool.”

“Your honor,” Travis countered, “we need impartial jurors with no strong feelings one way or the other. If Profesora Castillo encounters a juror who attended a couple of ‘sex is biologically determined’ rallies, who teaches her students that sex is biologically determined, and who voted for me, I will have no objections should she wish to challenge that juror for cause. This juror not only works for the same employer as my client, but also has strong opinions that may conflict with her obligation to approach the case with an open mind.”

Judge Connor looked at Senator Travis and then back at Senator Castillo. “Denied. This juror said she has no opinion as to the guilt or innocence of the defendant.”

Senator Travis glared at the judge. “Then we shall use a peremptory challenge.”

“We will excuse you Ms. Dagley,” the judge explained. “Call the next juror.”

The bailiff drew the next name out of a box. “Number 28, J. H. Bowman,”.

Bowman was sworn in and took a seat in the witness box.

“Are you a resident of this county?” the judge asked.

“I am,” he replied.

“Are you related by blood or marriage to Dr. Andrews, or to any of the counsel representing the state or Dr. Andrews?”

“No, sir.”

“And have you formed or expressed an opinion as to the guilt or innocence of this defendant, Dr. Andrews?” the judge continued.

“Yes, your honor,” he acknowledged.

“Have you spoken to any of the witnesses,” the judge inquired further, “or to anyone else who professes to know the facts of this case?”

“No, sir.”

“General rumor, then?” the judge asked.

“Yes, sir.”

“And do you think you can wholly disregard your opinion and go into the jury box, and try the case on the law and the evidence, and render a fair and impartial verdict?”

“I do, sir,” the juror replied

“Competent juror,” the judge declared. “Profesora Castillo?”

“Mr. Bowman,” Castillo asked, “Are you satisfied that you could render a decision in this case with perfect fairness to both sides?”

“Yes, I can,” he confirmed.

“Pass to you, ‘Professor,’” Castillo sat down.

Travis rose to his feet. “Have you attended any of the ‘social justice’ rallies at the courthouse, Mr. Bowman?”

“No, I have not.”

“Don’t define them for me, sir,” Travis continued his examination, “but do you think if I asked you, you could tell me what each letter stands for in the expression ‘LGBTQIA’?”

“Liberty, Guns, Bibles, Trump, QAnon,” Ferguson paused in thought, “Independence, and America!”

Travis stood a moment, a neutral expression on his face. “We’ll take this juror,” he confirmed at last, taking his seat.

“Profesora Castillo?” the judge passed the juror back to the prosecution.

“Challenge for cause,” Castillo half rose before resuming her seat.

“Thank you, Mr. Bowman,” the judge noted. “I believe I will excuse you. Next juror.”

By the end of the day, the jury was complete.

“That makes the jury,” the judge declared as the final seat was filled. “Mr. District Attorney, do you want to read your indictment and have the jury sworn in tonight?”

Senator Castillo shook her head, “no.”

The district attorney rose. “Your honor, the state believes we should adjourn and start fresh tomorrow morning.”

“The defense has no objection, your honor,” Senator Travis explained, rising to his feet. “However we would prefer to see the jury sworn in before we adjourn.”

“We would prefer the jury not be sworn in until tomorrow morning,” Senator Castillo rose to stand beside the district attorney.

“I move that the jury be sworn in tonight,” Senator Travis demanded. “They are under no obligation until they are sworn.”

“If a juror becomes sick overnight, we would have a mistrial,” Senator Castillo objected.

“I’ll let you sweat about that,” Travis smiled.

“Motion denied,” the judge ruled. “Let me explain for the benefit of our guests who may not be familiar with our procedures,” the judge cut short the argument. “Before the jury is sworn, the issues are made up, and in making up the issues, I expect you both to outline your theories. I anticipate about thirty minutes in all for the indictment to be read and for each side to make opening statements.”

“I presume you are correct, your honor,” a humbled Travis interjected, “but may I have my request preserved for the record?”

“Very well. Let the record show Professor Travis requested the jury be sworn in, and I denied his request.” The judge turned to address the jury. “By mutual agreement of both parties, we will be adjourning until tomorrow morning. Whether sworn or unsworn, ladies and gentlemen of the jury, you have been selected here as the jurors to try the issues in this case and it would be highly improper for any of you to talk to any person about the facts of this case, or allow any person to talk in your presence about the facts of the case or to read anything online about the facts of the case. Avoid any rallies or debates in which the issues may be addressed. If any reporter or anyone else wants to talk to you, explain you are a juror and cannot discuss the matter with them. If they persist, you will let me know and I will deal with them. I want you to keep your minds open and free from anything that might prejudice your opinion in any manner, so you can take up and try these issues absolutely without prejudice or bias, and try the case solely upon the law and the evidence presented in this courtroom. So, I give you that instruction.”

The judge banged his gavel. “This court stands adjourned until tomorrow morning at 9 am.”

“All rise!” the bailiff announced as the judge stood and departed.

The bailiff led Dr. Andrews out. Senator Castillo conversed quietly with the district attorney and Senator Travis furiously scribbled notes as the courtroom emptied.

Finally, the district attorney departed leaving the opposing counsels alone.