A close look at the deceptive, frequently cynical
process of jury selection helps explain why.
AS FIRST LADY OF THE PHILIPPINES, IMELDA MARCOS was famous for throwing the most extraordinary parties. But the one she threw in New York City on July 14, 1990, may have been her most astonishing. The guests of honor were none other than ten of 52 jurors who had just cleared Mrs. Marcos of charges that she had stolen hundreds of millions of dollars belonging to her own people. “It was so beautiful,” marveled juror Yvonne Granberry, 48, a teacher’s aide from Harlem. Said another juror, 54-year-old postal worker Anna Sneed: “I can’t get over what a simply lovely person Mrs. Marcos is.
Why had the jurors found the defendant so appealing, despite what many observers considered overwhelming evidence to the contrary? Answering that question may uncover one of our legal system’s greatest inadequacies: jury stacking. Some jurors succumb too easily to emotional appeals. Some are stymied by complexity. Some filter facts through prejudice. And this isn’t always by accident. Through the deceptive, frequently cynical process of jury selection, lawyers can and often do steer some of the least capable and least fair-minded people onto important cases. This helps explain why so many jury verdicts seem to defy logic, reality and the law.
LAWYERS ELIMINATE prospective jurors they believe will be unfavorable by using so-called peremptory challenges, which allow them to reject a limited number of candidates without giving any reason. In the Marcos case the prosecution had six such challenges, while the defense team had ten for Imelda Marcos and her co-defendant, Saudi Arabian arms merchant Adnan Khashoggi, charged with obstruction of justice and mail fraud. The challenges would all be exercised after the judge’s and lawyers’ interviews with each prospective juror, the so-called voir dire, translated variously as “to speak the truth” or “true talk.” These interviews began Tuesday, March 20, 1990. There were quite a few alert and well-informed juror candidates that morning; the voir dire would eliminate many of them.
Chemist David Gong, like other prospects, had filled out a 32-page background questionnaire. It revealed that he liked to read Science magazine and didn’t watch much TV . He knew that Ferdinand Marcos was the former president of the Philippines and that Imelda Marcos owned an abundance of shoes. But he said that he wouldn’t hold this against her because the whole subject was trivial. He was intelligent, respectful and articulate. He didn’t make it. Khashoggi lawyer James P Linn wanted to avoid people who tended to be too exact ing, not seeing the gray areas of life Gong came across as too analytical Another mark against Gong was that he was Asian. Defense attorney felt that he would believe in hierarchies and respect authority. Prospective juror Zachary Berman, 49, had a graduate degree in urban planning and a job with a child-protection agency, investigating abuse. He knew that Khashoggi was wealthy, but he said he had no preconceived ideas about guilt or innocence and had no ill feelings toward Arabs Khashoggi lawyers insisted that Berman be struck because he is Jewish. Explained one defense lawyer: “When an American Jew thinks of an Arabian arms trader, he doesn’t think of a friend. Most experienced lawyers pride themselves on spotting favorable jurors, often by relying on ethnic, class and racial stereotypes, and Khashoggi lawyer Linn was no exception.
A COMMON CHARACTERISTIC of many of the jurors chosen was that they were ill-informed about public affairs, just as the defense had hoped. Pretrial publicity had been consistently negative toward Imelda Marcos. Cartoons made fun of her fondness for shoes. Anyone aware of the media’s version, Marcos’s attorney, Gerry Spence, would explain later, “had a preconceived prejudice against my client. Even I did.” One of the jurors chosen was Ted Kutzy, a 25-year-old electrical engineer who liked to watch “The Simpson’s.” Kutzy said he’d never bought a newspaper, never watched TV news, never heard of Imelda Marcos. The defense lawyers were delighted. Another chosen was Llewellyn White, a 49-year-Old native of Mont-serrat in the Caribbean and a subway motorman with the New York City Transit Authority. His brother had been shot less than three months earlier, and the killer had not been caught. Asked by Judge John F. Keenan whether that would affect his objectivity, White said, “No, Your Honor, not at all.”
But the defense team was nearly certain that White would view the case as a misuse of the criminal-justice system that diverted resources away from street crime. In fact, they planned to attack the prosecution’s case partly on the ground that it was a waste of taxpayers’ money and courtroom time. “We all agreed he had to stay,” a defense lawyer said. In addition, the lawyers figured that since White had lived for 20 years in a Third World country, he would know that U.S. standards of political corruption aren’t necessarily those of other countries. He might prefer not to impose American laws on foreign defendants. Juror Alan Belofsky described his parents’ background as “Jewish/European,” an obvious red flag to the Khashoggi lawyers. In addition, his tone of voice and body language were all wrong in a case in which the defense needed sympathy. He was constantly frowning.
But Belofsky was a union man, and Spence was pm-union. Moreover, Spence had his own collection of stereotypes. He favored having Jews on juries because he viewed them as sensitive to persecution. He preferred men to women because he believed men are more forgiving of others’ mistakes. In addition, Belofsky seemed stubborn and argumentative. That made him a potential “hanger”—someone who might hold out and force a hung jury and a mistrial. Despite everyone else’s misgivings, Spence insisted that Belofsky must serve.
THE TRIAL BEGAN on April 3, 1990. The charges came down to this: Imelda Marcos had joined her late husband, the longtime president of the Philippines, in looting the Philippine economy and stashing the money in secret bank accounts. Then she had spent millions on jewelry, real estate, including a $30-million office tower, and a $6-million art collection. After the dictatorship was overthrown, the Marcoses had fled to Hawaii, transferring buildings and artwork they had accum-ulated in the United States to Khashoggi. Documents had been backdated in an effort to evade a U.S. court freeze on those assets.
The case against Imelda seemed strong. The jurors, however, weren’t buying. Sometimes the evidence got lost in the muddle of monetary transactions. But it wasn’t just the complexity of the case. Some jurors simply liked Imelda Marcos and felt sorry for her. Her lawyer, Spence, had sketched her as a decent, generous and persecuted woman. There she sat each day, dressed somberly in black, fingering her rosary beads, sometimes dabbing away tears with a black, lace-trimmed handkerchief. At one point she sobbed on Spence’s shoulder, and the trial was delayed because her blood pressure had risen perilously high.
A few days later Marcos fainted, and the trial was postponed for a week. By that time juror Yvonne Granberry, the teacher’s aide, didn’t believe Imelda was wicked or cruel. “She always seemed warm to me,Granberry said. Added postal clerk Anna Sneed, “She didn’t seem like a person who would scheme and cheat people. I thought, ‘Why are they harassing this sick woman?’’
WHEN THE JURORS MET On Thursday, June 28, 1990, Alan Belofsky was the first to speak. “Imelda was spending money like there’s no tomorrow and she went to a lot of trouble to disguise that. Why would she do that if she thought it was all legitimate?” Belofsky added that it was clear Ferdinand Marcos had skimmed money off the top of government contracts for years. Meanwhile, Jmelda Marcos had been mayor of Manila and had been deeply involved in governmental affairs. “Spence is asking me to believe she’s spending all this money and she’s not asking where it is coming from.” How could she not have known the source of her nearly inexhaustible wealth?
Expecting support for what seemed to him an obvious conclusion, Belofsky was met instead with disagreement, even derision. Just as the defense surmised, White scoffed at the notion that it was illegal for potentates such as Ferdinand Marcos to demand a percentage of businesses’ profits. “If you’re head of a Third World country, you’re it.” Jury forewoman Catherine Balton, a 62-year-old retired office manager, called for a show of hands. The initial vote: 10-2 for acquittal. Only Balton had joined Belofsky. The next day deliberations grew testier. Belofsky was reduced to asserting, again and again, that Marcos simply must have known what was going on. “Can’t you see that Spence was lying?” he’d ask, his voice rising.
Some jurors just laughed. Responded Sandra Alberts, a 39-year-old paralegal, “Don’t even listen to the lawyers. They sit around and plot all day with smirks on their faces when they come up with a good idea. Spence can tell us anything. He’s not on trial.” Balton also had trouble believing that Imelda Marcos knew nothing about her husband’s life of crime. Yet despite the factual evidence of Imelda’s extraordinary involvement in her nation’s government, other jurors whispered among themselves that because Balton wasn’t married, she simply didn’t under-stand how many secrets spouses keep from each other. Alberts spoke to Balton about her own husband, who would sometimes go off to meetings, and she wouldn’t know for sure what he was doing. “Sandy talked to her real nice, recalls Anna Sneed. “She said it wasn’t all cut-and-dried in a marriage. Catherine just loved Sandy and listened to her.”
This friendly persuasion seemed to be taking hold. Balton finally changed her vote, not wanting the trial to end in a hung jury. Belofsky repeated his refrain that on the basis of the evidence, Imelda must have known about her husband’s activities. But by Monday, July 2, he was thoroughly disillusioned and frustrated that the other jurors were no longer bothering to listen to his arguments. “It was a holiday week-end,” he said afterward. “I wanted to get out. I just rolled with the punches.”
When the jury took its final vote that (lay, the tally was 12-0. Imelda Marcos was ready to party.
Stephen J. Adler was legal editor for the Wall Street Journal for six years.
“The Jury: Trail and Error in the American Courtroom.”
Copyright @ 1994 by: Stephen J. Adler
Published by: TIMES BOOKS, a division of Random House, Inc.
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See Wall Street Journal of September 14, 1994
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