In the past week, two high-profile mass-killing trials began, as many trials do, with jury selection. In Boston, Dzhokhar Tsarnaev is accused of assisting his brother in the planning and execution of the 2013 Boston Marathon bombing, which left three dead and 260 injured. In the suburbs of Denver, James Holmes is standing trial in the killing of 12 people and wounding of 70 more during a 2012 shooting spree in an Aurora, Colorado, movie theater.
And in both, the judges and lawyers involved face the particular challenge of finding 12 people who could possibly qualify as an “impartial jury,” as required by the Constitution.
In Boston, more than 1,200 people have been called to answer questions in the first round of jury selection, and in Colorado, an unprecedented 9,000 prospective jurors have been called to the Arapahoe County Courthouse to do the same.
That second number, 9,000, is reportedly the largest potential juror pool called in the history of the United States. By contrast, only 500 potential jurors were called for the 2013 trial of George Zimmerman, 600 for the Jerry Sandusky abuse trials, and 500 for the sentencing trial of Zacarias Moussaoui.
So, why 9,000?
The presiding judge in any case decides the size of a jury selection pool, but my requests to interview Colorado judge Carlos Samour went unanswered (understandably — he’s busy).
He did give a glimmer of insight into his thought process in a court document published in November, when he bumped the size of the prospective juror pool from 6,000 to 9,000. He wrote that, “after further reflection, the Court has decided to summon 9,000 prospective jurors instead of 6,000. It will be much easier to call off prospective jurors who are not needed than it will be to adjust if there are insufficient prospective jurors.”
But compared with the historical size of juror pools, this number seems more and more bizarre. Valerie Hans, a Cornell Law School professor specializing in jury research, said pool sizes vary by state and county, based on the particular system and how good each judge is at estimating the size of an appropriate pool. But, she said, “none of that would lead to 9,000 people. I’m astonished.”
In fact, the record shows that even in some of the highest-profile cases of the past 35 years, courts got the job done with way fewer jurors.
A book called “Managing Notorious Trials,” published in 1992 and revised in 1998, looked at the size of the jury pool called for high-profile cases tried in the D.C. U.S. District Court between 1980 and 1998. This data set includes the trials of John Hinckley Jr., who tried to assassinate Ronald Reagan, and the Iran-contra trial of Oliver North. For North, the court got what it considered a valid jury out of a pool of 234. For Hinckley, it only took 90.
These numbers don’t reflect the entire pool; they’re the number of prospective jurors who responded to summons. According to data published in a recent survey of state courts, Samour can expect somewhere between 25 and 30 percent of his 9,000 summons to be delivered to an old address, reach someone who isn’t qualified for duty, or simply go unanswered. That still leaves a potential juror pool more than 10 times larger than those summoned in some of the largest cases since 1980.
If you’re thinking this might have something to do with the nature of notorious murder cases — opposed to massive military corruption or presidential assassination attempts — the courts found serial killer Jeffrey Dahmer a jury from a pool of just 150 in 1992.
It’s difficult to compare cases of such specific awfulness, of course, and the media environment has certainly changed between 1992 and today. But has it really changed by a factor of 50?
Greg Hurley, an analyst at the Center for Jury Studies at the National Center for State Courts, called a potential juror pool of 9,000 “an extreme aberration.” Hurley said the CJS advises courts to keep their wasted juror percentage as low as possible — ideally as low as 10 percent at each phase of the culling process. By “wasted jurors,” Hurley means people who sit in a holding room all day and don’t make it to questioning. Keeping the number of wasted jurors down not only cuts down on costs — an increasing concern, Hurley noted, in the belt-tightening post-2008 financial climate — but also keeps people from thinking that the justice system is hugely inefficient.