Jury selection begins today in the trial of George Tiller, a Kansas doctor who is known for running a clinic that performs late-term (sometimes referred to as "partial-birth") abortions. Tiller is accused of 19 misdemeanor counts of failing to secure a second opinion before performing these late-term procedures. In truth, he did secure second opinions, but always from the same doctor, Dr. Ann Kristin Newhaus. The prosecution contends that Tiller and Neuhaus had an ongoing financial relationship, in violation of Kansas law. This relationship, it is alleged, negates the legitimacy of those second opinions.
The judge in the case, Hon. Clark Owens, will undoubtedly admonish the members of the jury pool that this is not a case about the legal, ethical, moral or religious status of abortion. He will ask each of them whether s/he can put aside whatever preconceived notions s/he might have about the issue and decide the case strictly on the facts. Those who ultimately serve will have somberly nodded and sworn to be impartial. And each and every one of them will have been lying.
Any case involving abortion is certain to invoke strong feelings about the issue. A pro-life juror will always view the actions of an abortion doctor with greater skepticism than will a pro-choice juror. But this is not just any case.
For the past 25 years, Dr. Tiller has been at the center of the abortion debate maelstrom in the nation's heartland. In 1986, his clinic was damaged by a pipe bomb. In 1991,Operation Rescue staged the 45-day "Summer of Mercy" event outside his clinic. In 1993, a pro-life vigilante shot Dr. Tiller once in each arm. When it comes to the war over abortion, Dr. Tiller's Wichita clinic is ground zero.
Two prior attempts to prosecute Dr. Tiller failed because the grand juries refused to indict him. Another attempt, filed by former Attorney General, Phile Kline, was dismissed for jurisdictional reasons.
Which brings us back to jury selection. Any juror who says she can judge this case impartially is deluding herself and/or the court. This clinic has been in the local news for 40 years. Everyone has an opinion. Unfortunately, when the court tries to determine who will at least try to stick to the facts, Judge Owens will undoubtedly ask exactly the wrong question, as almost all judges do. The judge will ask each juror whether she can set aside what she's read, or heard, or seen about the case. He will ask each juror whether she can rely on the facts, notwithstanding personal views about abortion. And the judge will seat the jurors who answer "yes." And there's the rub...
Decades of research into the effects of "extra-legal factors" (such as pretrial publicity or religious views) on verdict choice shows that those jurors who believe they can ignore the effects of such factors are generally more influenced by them than those jurors who admit that they would have a hard time putting their feelings aside. This should come as no surprise to any casual student of human nature. Those people who are introspective enough to realize that their feelings and experiences will affect their decision-making are better able to recognize when it is happening and try to compensate. To state it more simply, those who are more worried about being unfair will work harder to be fair.
So, following upon centuries of experience and precedent, Judge Owens will almost certainly seat exactly the wrong jurors.
So, is all lost? Is it hopeless to think that the state and the defendant will receive a fair trial? Not necessarily. I am a legal realist (and a dangerously knowledgeable social scientist). As such, I have never believed that an impartial jury is one comprised of impartial jurors -- such animals don't exist. Rather, an impartial jury is comprised of people who represent a fair cross-section of the community, with all the experiential and emotional baggage that we all carry, and who will hopefully walk into the jury room with open ears and an open mind.
I think it works most of the time. On almost all issues, more unites us than divides us. Most people appreciate that we don't live in a world of absolutes. Reasonable people can disagree.
Unfortunately, abortion is one of those issues that seems to completely polarize the populace. Do any of us really have an open mind on this issue? This case is almost certainly going to become a referendum on abortion. If that happens, I cannot imagine any outcome other than a hung jury -- and a contentious one at that.
This is not the last we'll hear about this case. It threatens to go on, and on, and on...