In juries, lawyers now favor the uninformed

Stephanie Clifford
Martin Shkreli arrives to federal court in Brooklyn on June 27th, 2017.
Justin Solomon | CNBC

By the second morning of jury selection in Martin Shkreli's fraud trial in Brooklyn, more than 130 prospective jurors had been tossed out: people with vacation or work conflicts, those who had heard about the case and even several who worked in pharmaceuticals or finance, fields in which Mr. Shkreli has worked.

Judge Kiyo A. Matsumoto turned to a young woman who works in accounting and asked if she had read or heard anything about the case. Just that morning, a court officer had confiscated a juror's copy of The New York Post with the case on the cover.

"Oh, no, never," the woman said.

"Oh, very good," Judge Matsumoto responded.

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The next day, after lawyers and the judge had dismissed more than 300 jurors in all, the woman made it onto the jury as an alternate.

Jury selections today have moved beyond seeking the unbiased to favoring the uninformed.

Dismissing potential jurors who might favor either the prosecution or the defense has long been a tenet of the American jury system; the right to an impartial jury is guaranteed by the Constitution.

But now, perhaps in a sign of a polarized age, lawyers from both sides appear increasingly to be concerned that opinions mean inflexibility. They are looking for jurors who not only have no viewpoints on the case, but also little exposure to the subject matter, who don't follow the news, haven't traveled to the places discussed at trial and have pastimes as innocuous as possible.

One juror at a Manhattan federal trial this year was dismissed by prosecutors who explained they were concerned about his spending his leisure time being "a First Amendment advocate." "Everyone in this courtroom is a First Amendment advocate, including the United States, I would hope," a defense lawyer shot back.

A possible result: Jurors without the expertise to analyze specialized evidence may instead use lawyers' storylines, or their own feelings about a defendant, to decide a case.

"The problem is, anybody who knows enough about the case runs the risk of being dangerous for one or both sides," said Leslie Ellis, a director at the trial consulting firm DecisionQuest. "You usually cannot ask them questions to get at how deep their knowledge on this runs, or will they get everything right when they're in deliberations.

"One side or the other will strike them because they don't want anybody in the jury room who can override their witnesses, and become a bigger influence than the witnesses."

For instance, the case of Mr. Shkreli, a 34-year-old former pharmaceutical executive and onetime hedge fund manager, involves complex finance. It is being held in the Federal District Court in Brooklyn, in a city that is one of the world's biggest financial centers. Within days, jurors would be hearing testimony about bid-ask spreads, the valuation of limited-market securities, par value, funds of funds and PIPEs (private investment in public equity).

Yet when Judge Matsumoto asked about 45 potential jurors — who had already been weeded from a much larger group — whether any owned stocks, only five or so raised their hands. (More than half of Americans own stocks.) Few said they knew about major financial entities like the banking giant UBS, or the Securities and Exchange Commission.

A similar pattern has appeared in the jury makeup for a range of cases.

Donald L. Blankenship, a former chief executive of Massey Energy Company, was charged with covering up safety violations, leading to an explosion that killed 29 coal miners in 2010. The deaths and the charges were highly publicized, especially in West Virginia, the trial's location.

Still, one seated juror said during the jury selection that the case was "something about embezzling" or "maybe something about safety." Another, who said she only knew there was "some kind of explosion or something," explained she was "really not in the mood to listen to the news." She was also chosen.

The jury selection in a recent terrorism case in Federal District Court in Manhattan also suggested that prosecutors were striking people who had been favorably exposed to Muslims or the Middle East.

In jury selection, a judge may excuse a juror for hardship, like a work conflict, or for cause, like bias. After those jurors are dismissed, lawyers from each side get a certain number of peremptory strikes, where they cut people who they think will not support their side. The number of permitted challenges varies depending on the type of case and the court.

The trial in Manhattan was of an Arizona man who, prosecutors said, assisted a New York college student in joining the Islamic State by helping coordinate his travel through Turkey to Syria.

A potential juror who took part in an exchange program in Turkey and had visited there? Cut by the prosecution.

A journalist who had gone to Egypt, whose sister had worked in Syria, and who had lots of friends who had visited Turkey? Cut by the prosecution.

A Manhattan musician whose wife worked at the United Nations and who told the judge his wife's colleagues had "opened my mind to the Muslim world"? Cut by the prosecution.

When a defense lawyer, Daniel Habib, asked the government to explain its strikes, prosecutors said the exchange-program man's "prior experience" could "seep into his deliberations"; the journalist was "too enthusiastic"; and the United Nations spouse had talked "in a loud manner."

Left in the jury were people who, for the most part, had expressed few opinions about or experiences with the Middle East or Muslims.

In a recent insider trading case in San Francisco, lawyers struck several jurors with financial experience, including one who'd worked in venture capital and said, "You kind of see how the sausage is made."

It wasn't always a plus to know little.

The earliest forms of juries in the English legal system sought men who knew something about a case to evaluate it. The Assize of Clarendon, in 1166, which initiated the use of the jury in English criminal justice, described 12 local men to "speak the truth" about "any man accused or notoriously suspect" in their regions.

John H. Langbein, professor emeritus of law and legal history at Yale, said in a 2015 speech that this setup was premised on the societal arrangements of the time, where villagers collectively made their towns run. As time went on, "responding to the growing reality that the jurors were ceasing to have knowledge of the events in dispute, jury trial changed function and became primarily an occasion for educating the jurors about the facts," he said.

Generally, prosecutors look for "people who are community-minded," like people who are married, employed in a role that requires dealing with others or involved in community groups — that is, people who can reach a consensus, said Arlo Devlin-Brown, a partner at Covington & Burling who was until last year a federal prosecutor in Manhattan. They are "trying to avoid people who may be loners," he said.

And not all lawyers today look for jurors who are coming to a case with little knowledge of the subject matter. Asked about how he would pick jurors for Mr. Shkreli's trial, Robert J. A. Zito, a longtime white-collar defense lawyer who will soon become a professor at Marist College, said, "I would want financial people on the jury, because the underlying transactions are very complicated."

One problem with Mr. Shkreli is how much people seem to dislike him, Mr. Zito said, and that could sway jurors who know little about finance. "The judge is going to give them a jury instruction that's going to go on for hours, people's eyes are going to glaze over," he said, whereas "people who are more sophisticated are going to be able to say, 'O.K., we don't like him but look at what the evidence is.'"

At Mr. Shkreli's jury selection, lawyers seemed to be taking the opposite tack. A manager at a broker-dealer "would be an expert in the room," argued Mr. Shkreli's lawyer Benjamin Brafman, and the man was dismissed.

A pharmacist told Judge Matsumoto that if the issue of pharmaceutical pricing came up — Mr. Shkreli sharply increased the price of a lifesaving drug, Daraprim, though that is not part of these charges — he would tell other jurors what he knew about the topic. Mr. Brafman argued for him to be dismissed for cause.

Finally, after two and a half days of questioning the jury, lawyers needed only 15 minutes to make their picks.

While Mr. Shkreli and his lawyers hurried into a court conference room, prosecutors, federal agents and a paralegal for the government huddled over a table in the courtroom, making notes on pages printed with each juror's name, juror number and space to write notes on the juror.

The groups of lawyers gathered around Judge Matsumoto and, in quiet voices, gave their strikes. Twelve jurors and six alternates remained when they were done, including one current and one retired United Parcel Service driver, two human resources employees at a community college, a utility company employee, a parking meter repairman, a retired veterinarian, a software support worker and a current and a retired speech pathologist.

Soon after the jurors took the seats they'd sit in for the next six weeks or so, Mr. Brafman gave his opening argument.

"You are savvy New Yorkers: There is no expertise" you need to evaluate the case, he said, no "special math."

"You need street smarts," he said.