Of course, as we live in an age when violence is found inconvenient and annoying, your jury naturally condemns by its verdict crimes of a violent character, and will make but short work of highwayman and thug. Burglars are unpopular both with the public and with the juror; and it needs no burst of rhetoric to induce a jury to find a verdict against a "firebug" or a "cadet." But once step into that class of cases, the subject of which is commercial fraud, and the jury look upon the prosecution with averted eye. Just so long as dishonesty of one kind or another is openly countenanced in business, just so long it will be practically impossible, except under unusual conditions, to convict the fraudulent bankrupt or the retailer who has secured goods and credit upon false representations. Mayhap there is upon the jury some tradesman who has "padded" his own credit statement; some one who has placed a fictitious valuation on his stock, or has told alluring but unsubstantial stories as to his "orders on hand," "cash in bank," and "bills receivable." What chance under those circumstances of a conviction?
"The jury, passing on the prisoner's life,
May have in the sworn twelve a thief or two
Guiltier than him they try."
"Why," says a juror, "here they are trying to convict this fellow Einstein of what everybody does every day in the year. Rubbish! Am I a thief! I don't have any criminal intent. He was just tryin' to boost his assets a little. He's no criminal." And out he goes to the jury-room and persuades the other eleven that the defendant is no worse than everybody. Of course, everybody isn't a thief. The syllogism is irrefutable.
"I suppose you didn't believe that Mr. Einstein made those false statements?" says the writer, approaching him as he steps into the corridor. The juror pauses in lighting his cigar.
"Sure, he made 'em!" he remarks. "Of course he made 'em! But, H—l, he's no criminal!" This is an actual experience.
Our distaste for physical violence has had a rather paradoxical result so far as the jury is concerned, for it appears to be coupled with a small (and what seems to be a decreasing) regard for human life. Verdicts of murder in the first degree are exceedingly rare, and it requires a crime of a peculiarly atrocious character to induce the jury to send the defendant to the electric chair. This is due in part to cowardice and in part to the misconception of their function already dwelt upon, since in almost all murder cases the jury regard themselves as fixing the penalty. Inasmuch as most persons who meet death from violence are themselves of violent character, the jury frequently seems to believe that the defendant is entitled to a certain amount of consideration for ridding the community of his victim, and this often finds joyful expression in a verdict of manslaughter.
Totally distinct, however, from this trifling with justice, whether it be wilful or voluntary, is the unconscious bias of each member of the human family due to race, religion, education, and character. Hence jurors are examined with an elaborate care and minuteness of investigation which in practice is often shown to be ridiculous. In fact certain maxims having almost the force of legal doctrines have grown up about the selection of a jury. A defendant's counsel will invariably challenge an Irishman if his client be a negro, and vice versa. This is likewise apt to be the case if the client be an Italian. Talesmen with wives and children are generally supposed to be more susceptible to arguments directed to their sympathies. Hebrews are presumed to make particularly undesirable jurors for the defence where the crime charged is one of violence or arson, and are likewise usually challenged when the defence is self-defence. Old men are popularly supposed to make indulgent jurors, although the writer's own experience is to the contrary, and he has noticed that persons with long, drooping mustaches are invariably excused. Neither side as a rule cares for missionaries or persons engaged in philanthropic enterprises, since the prosecutor feels instinctively that their eleemosynary tendencies will extend to the prisoner, while the defence has a presentiment that they will lead him to favor the damaged complainant. Writers, editors, and publishers are generally excused by the defence as too intelligent, i.e., too prone to theoretic arguments as distinguished from a "broad view," which from the prisoner's standpoint means one including every sympathetic reason that can be suggested. Artists are distrusted by prosecutors as romantic and imaginative. Butchers, coffin-makers, sextons, grave-diggers, undertakers, and dealers in electrical supplies are invariably excused for obvious reasons by the defendant in homicide cases. Liquor dealers are believed to be prone to take a lenient view of the shortcomings of humanity in general, while persons of brisk, incisive manners naturally suggest heartlessness to the cowering defendant. The writer knows an assistant who will not try a case if there is a man with a pompadour on the jury, and neither prosecution nor defence cares for long-haired jurors of the "yarb doctor" variety, while the dapper little man with the "dickey" and red necktie is invariably excused by the defence unless the defendant be a woman.
The frivolous character of these rules needs no comment. Almost every lawyer and every prosecutor believes himself to be a past master in the study of character from external evidence, and upon the most trivial and unnatural of pretexts will challenge a talesman so unfortunate as not to suit his fancy. Yet when all is done and when, after the most exhaustive examination and cross-examination of several hundred special talesmen, wrenched from their places of business or the bosoms of their families, twelve men have been finally selected and sworn, it is probable that they are in no respect superior to the first twelve who might have been chosen.
In murder cases each side may challenge peremptorily thirty talesmen, and numerous are the legal "jumps" over which they must successfully ride before they can qualify for service. Thus it is unusual in a homicide case to select a jury in less than two days, and in some instances it has taken two weeks. On the other hand, equally satisfactory juries have occasionally been selected in such cases in less than an hour.
The general futility of trying to secure a jury of particular capacity or intelligence, or one which will contain no juror of pronounced idiosyncrasies, is rather well illustrated by the following incident: The defendant's counsel, a man of considerable repute at the criminal bar, had spent over two days in the elaborate selection of a jury. It had taken him two hours to get a foreman to his fancy, but at last he had accepted a solid-looking old German grocer. After a trial lasting several days the jury convicted the defendant in short order, greatly to the disgust of the eminent lawyer, who vented his indignation rather loudly in the presence of the foreman as he was leaving the box. The old German leaned over good-naturedly and remarked, pointing to the door in the back of the court-room leading to the prison pen: "Vell, Mr. ——, if you vant to know vat I tinks, I tells you. Ven I see him come in through dot leetle door back dere, den I knows he's guilty!"