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Jury Selection: The Most Important Part of Michael Dunn’s Retrial

An artist's drawing of a jury box with 12 jurors in it

“Jury selection will be the most important part of the Michael Dunn retrial.”

Jury selection will be the most important part of the Michael Dunn retrial, which is scheduled to start next Monday. To have any chance to convict Michael Dunn of murdering Jordan Davis, the prosecution must screen for, identify and exclude any prospective juror who believes that it’s reasonable to assume that:

  1. a black 16 to 21-year-old male who likes to listen to loud rap music is an angry thug;
  2. a black 16 to 21-year-old male who lips off at an adult white male who orders him to turn down the volume is an angry thug;
  3. a black 16 to 21-year-old male who cranks up the volume after being ordered to turn it down is an angry thug;
  4. it’s reasonable for an adult white male to assume that an angry black thug who confronts him is armed and intends to kill or seriously hurt him; and
  5. it’s reasonably necessary for an adult white male to use deadly force in self-defense to prevent an angry black thug from killing or seriously injuring him.

The best way to determine if any prospective jurors hold these views is to ask them a series of hypothetical questions to discover if they fear black 16 to 21-year-old males.

For example, if you were walking down a sidewalk by yourself and saw a black 16 to 21-year-old male walking toward you, would you,

  • continue walking toward him and ignore him;
  • continue walking toward him and greet him;
  • cross the street and walk down the other side; or
  • turn around and walk the other way?

The use of hypothetical questions is the best way to uncover racial prejudice.

Can you think of any other hypothetical questions that you might ask during voir dire?

Finally, if you were a prosecutor, would you rather try this case to a judge according to the procedure followed in South Africa?

Would your answer change, if you were defense counsel?

The most important disputed questions of fact in the case are whether Jordan Davis was armed or had something that looked like a weapon in his hands, and if he was attempting to get out of the back seat of the SUV when Dunn squeezed off multiple shots at him.

FYI: Judge Healey denied a defense motion for a change of venue, preferring to take a wait-and-see approach to see if the extensive publicity about the shooting and the first trial has made it impossible to seat a twelve-person jury that can fairly and impartially decide the case (i.e., jurors have already formed an opinion about what the outcome should be). Once chosen, the jury will be sequestered.

Cross posted from Frederick Leatherman Law Blog

Image by Beinecke Library released under a Creative Commons Share Alike license.
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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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