Luck of the Draw

It was a drug deal gone bad. Two white men from the suburbs drive to Harlem one night to buy cocaine. There’s a hassle, a shot, and one of them ends up dead. The judge in the state criminal court in Lower Manhattan explains that much, and the voir dire (jury selection) begins with about forty of us sitting in the jury box. One by one, we answer the judge’s list of questions, then the prosecutor’s questions. But the defense lawyer wants our answers in unison.

“You don’t judge someone guilty because of the color of his skin, do you?” he calls out. A pause. We’re puzzled about how to proceed, but by the next question, we’ve got the hang of it. “You don’t think someone is a murderer just because he sells drugs?” “No,” we sing in unison. A few more rounds, and he’s finished. I look at the defendant and wonder if he can get a new lawyer.

The jury system, Tocqueville wrote, “should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law. . . .”

I’ll sign on to Tocqueville’s statement as long as the phrase “best-educated and most-enlightened members of the upper classes” is replaced with “legal professionals whose level of competence varies wildly.” Jury duty is, indeed, a free school in the nation’s system of law and its application by and for citizens. But the court professionals are not all Tocqueville’s best and brightest. Like the professionals in every field, they include talented practitioners, mediocrities, and the occasional bad apple. In the United States—a democracy shaped by grotesque socioeconomic inequality—the poor often get stuck with the mediocrities as defense lawyers and can suffer dire consequences.

The system operates differently with judges. They include the same mix of competencies, but luck of the draw determines whether or not you get one who is skillful and fair. Even a billionaire with a phalanx of silk-suited lawyers can find herself in front of a second-rate judge. The defendant obviously has the most at stake, but everyone involved in the trial feels the effects of the judge’s caliber. Judges set the tone and pace of the proceedings; they influence the course of the trial with rulings; they have the most direct relationship with the jurors, a relationship of authority. When judges say, “This is my courtroom,” they speak the truth.

Several years after the drug-related murder case, I was part of the voir dire for a case involving a drug bust by an undercover narcotics officer. The defense was clearly going to argue entrapment, so the lawyers tried to get a sense of how the prospective jurors felt about the police, drug users, and drug pushers. The lawyers were doing their jobs well, but after a minute and a half, I knew the presiding judge was a complete jer...