But, Everyone Likes Cake, Don't They?

Stop me if I told you this one before. It happened a while ago, but I don't think I ever wrote about it.

It was the first round of voir dire (jury selection). The courtroom is packed with almost one hundred prospective jurors, filling the audience. We start by addressing the first twelve as a panel. The prosecutor gets to go first.

I'm listening, but it's the same old stuff from every case. But then he's making some long, dumb analogy about reasonable doubt being like a recipe. Maybe you have some ingredients of the recipe, but you don't have all of the ingredients... could it still come out as the intended finished product?

I knew where he was going with this. The prosecutor didn't have a key piece of evidence. The police had given the allegedly stolen property back to the victim immediately upon my client's arrest. He's trying to make sure the jury is going to be alright with never getting to see that key piece of evidence.

My mind starts to wander just a little bit. I started to think that maybe when it was my turn, I would get up and follow up on his analogy. Maybe I would ask, "Ok, if you're asked to make a salad for a dinner party, and then realize that you don't have any lettuce, can you just toss the salad dressing in a bowl and call it 'close enough?' Can you hope that your dinner party guests will just smell the salad dressing and jump to the conclusion that you've made a nice salad for them, without you ever having to show it to them...?"

But luckily, something pulled my attention back to the courtroom. Just in time to hear the prosecutor address Juror Number Five, the lone obese man on the panel, by saying, "Mr. Smith, you like cake, right?"

Poor Mr. Smith turned bright red. One woman gasped out loud. The entire room gave the prosecutor dirty looks. To his credit, he kept on talking, as if maybe he didn't even get his faux pas. But there weren't enough peremptories in the world.

And there was no way I was touching that analogy with a ten foot pole.

The lesson to learn here is: Stick with salad, it's safer. That's the easy lesson.

I guess the slightly more complicated lesson is, look at someone and try to be sensitive to what their insecurities might be. But that takes a little more empathy than most young prosecutors have.

(Later, I overheard the prosecutor talking to a court officer. I think the court officer was trying to explain to the prosecutor where he went wrong. To which, the prosecutor, still clueless, responded, "But, everyone likes cake, don't they?")


  1. Once.. I had this juror who went to high school with the responding officer. I was thinking, "Well, that so long ago that it probably doesn't make a difference in her opinion." And I actually said something that implied it was a long time ago.. and as soon as it came out of my mouth, I was immediately embarrassed.


    But really, the women clearly graduated over 20 years ago, so what's the big deal?

  2. erm, "prospective" not "perspective" juror...

  3. I have a friend who works in the financial industry who doesn't wear skirt suits, doesn't wear makeup or jewelry, and has a slightly low voice. At a meeting to talk about diversity and in particular LGBT recruiting, one thickheaded work colleague said, "Well, we should ask [friend's name]! She should know all about it."

    Friend was, of course, sitting in the room. Friend says quietly, "I'm not a lesbian. I'm straight." And someone else says to the guy, "And even if she were, you shouldn't be outing someone like that."

    Not too quick on the uptake, the thickheaded work colleague tried to "explain" his faux pas by pointing at friend and spluttering, "Not a lesbian? Just... just... look at her!"

    I swear I am not making this up.

  4. Ooh, good catch, Biggie. Thanks, I fixed it. That's why my teachers always said "you can't get by one spell checker alone." ;)