Two of my favorite blogs, The Wild Hunt and Pagan~Vigil recently wrote about jury selection in the Scott Dyleski murder trial. In the jury selection, individuals who identified as being goth, or Wiccan, or even just into going to renaissance faires were eliminated. Both bloggers conclude that there is something wrong with the process when this kind of discrimination is possible. NeoWayland calls it a blatant example of jury stacking, and Jason Pitzl-Waters felt it was a “twisting of the principles of being tried by a jury of one’s peers.” Being a pagan trial attorney who has done his share of jury selection, I feel like I should throw in my two-cents.

Frankly, I don’t think it was that big of a deal.

It goes to the method we use to select juries. “Selecting” juries is a bit of a misnomer. It’s really de-selecting juries. That is, there is a random “pool” of jurors and both sides de-select people from that pool according to certain rules until you are left with your jury. For those who might be interested in all the gory details, in my State, they start at La. C.Cr.P. 782.

When it comes down to it, there are really only two general ways that are fair to select a jury. The first would be a truly random selection, and whatever you get is what you get. That would be fair, but most people wouldn’t like to spin the wheel quite that much. The other choice is to have some process by which jurors are reasonably selected and anyone with unfair biases somehow weeded out.

Now, what we have in this country is an “adversarial” system of justice. Two sides battle it out on what is supposed to be a level playing field, and justice is thus achieved. As long as the rules help keep a level playing field, treat both sides relatively equally, then it is considered fair. We can’t perfectly get at what people’s biases are, so we put the problem in the hands of the parties. We say: “Here ya go. Here’s a bunch of folks who can be on your jury. Is there anyone you don’t want there?” Both sides can eliminate anyone they think would be biased against their case.

There is a certian number of eliminations they can make for no reason at all. If it’s an extreme bias, the juror can be eliminated for free, without using up one side’s limited allotment of strikes. It’s not a perfect system, but the result is that you end up with a jury that is pretty much in-the-middle with no obvious extremes in preconceptions. The way it has always worked out for me in any given case is that the other side would take out all the people I really wanted on the jury and, hopefully, I took out all the people he really wanted.

So, yes, Wiccans will be eliminated in occult-themed cases. So will “God-Fearin’ Bible-Thumpers” because the Defense gets to de-select jurors too. Both sides have to burn up their limited allotment of free strikes, called “peremtory challenges” in Louisiana, to do so. The defense attorney will certainly try to eliminate anyone too conservative or too easily swayed by the State’s witnesses. In other cases, the people “discriminated” against might be Mormons, might be Methodists, might be used car dealers.

It’s not jury stacking, it’s jury selecting. When it comes down to it, it might not be a perfect system, but it’s not a perfect world. It’s still a pretty darn good system and I can’t think of a way to make it any better. Don’t get me wrong — Pagans are discriminated against unfairly in many ways and places. I just don’t think this is one of them.