# The dark joke that was Shkreli's voir dire

Two things.

First, these selected quotations from the voir dire of Martin Shkreli's trial for securities fraud are widely understood to be hilarious:

The Court: The purpose of jury selection is to ensure fairness and impartiality in this case. If you think that you could not be fair and impartial, it is your duty to tell me. All right. Juror Number 1.

Juror no. 1: I’m aware of the defendant and I hate him.

[Defense attorney] Benjamin Brafman: I’m sorry.

Juror no. 1: I think he’s a greedy little man.

...

The Court: Juror Number 1 is excused. Juror Number 18.

Juror no. 18: Both of my parents are on prescriptions that have gone up over the past few months, so much that they can’t afford their drugs. I have several friends who have H.I.V. or AIDS who, again, can’t afford the prescription drugs that they were able to afford.

The Court: These charges don’t concern drug pricing. Could you decide this case based only on the evidence —

Juror no. 18: No. No.

The Court: — presented at this trial and put aside anything you might have heard in the media?

Juror no. 18: No. No.

The Court: Sir, we are going to excuse you from this panel. Juror Number 25, come forward, please.

Juror no. 25: This is the price-gouging, right, of drugs?

The Court: This case has nothing to do with drugs.

Juror no. 25: My kids use those drugs.

The Court: As I said, the case does not concern anything that you might have read or heard about the pricing of certain pharmaceuticals.

Juror no. 25: It affects my opinion of him.

The Court: I am going to excuse you. Juror Number 40. Come on up, sir.

Juror no. 40: I’m taking prescription medication. I would be upset if it went up by a thousand percent. I saw the testimony on TV to Congress and I saw his face on the news last night. By the time I came in and sat down and he turned around, I felt immediately I was biased.

The Court: Sir, we are going to excuse you. Juror Number 47, please come up.

Juror no. 47: He’s the most hated man in America. In my opinion, he equates with Bernie Madoff with the drugs for pregnant women going from $15 to$750. My parents are in their eighties. They’re struggling to pay for their medication. My mother was telling me yesterday how my father’s cancer drug is \$9,000 a month.

The Court: The case is going to come before you on evidence that you must consider fairly and with an open mind.

Juror no. 47: I would find that difficult.

The Court: And that’s based on your parents’ experience with medication?

Juror no. 47: It’s based on people working very hard for their money. He defrauded his company and his investors, and that’s not right.

The Court: Ma’am, we’re going to excuse you. Juror Number 52, how are you?

Juror no. 52: When I walked in here today I looked at him, and in my head, that’s a snake — not knowing who he was. I just walked in and looked right at him and that’s a snake.

...

The Court: We will excuse you from this jury. Juror Number 77.

Juror no. 77: From everything I’ve seen on the news, everything I’ve read, I believe the defendant is the face of corporate greed in America.

Brafman: We would object.

Juror no. 77: You’d have to convince me he was innocent rather than guilty.

...

The Court: Well, I’m going to excuse you. Juror Number 144, tell us what you have heard.

Juror no. 144: I heard through the news of how the defendant changed the price of a pill by up-selling it. I heard he bought an album from the Wu-Tang Clan for a million dollars.

The Court: The question is, have you heard anything that would affect your ability to decide this case with an open mind. Can you do that?

Juror no. 144: I don’t think I can because he kind of looks like a dick.

The Court: You are Juror Number 144 and we will excuse you. Come forward, Juror Number 155. (...)

(Apparently, "more than two hundred potential jurors were excused from the trial.")

Second, they imply either one or both of:

• these members of the jury pool aren't taking at all seriously the civic duties that democratic rule of law requires, or/and
• even when they're actually trying, these two hundred of my civil peers were unable to separate emotional valence from matters of fact.

...I'm really not sure which concerns me more. Either way, I get a vague, creeping sense of doom -- and meanwhile, the rest of the internet seems to just be laughing at these sick burns.

Juror no. 28: I don’t like this person at all. I just can’t understand why he would be so stupid as to take an antibiotic which H.I.V. people need and jack it up five thousand percent. I would honestly, like, seriously like to go over there —

The Court: Sir, thank you.

Juror no. 28: Is he stupid or greedy? I can’t understand.

The Court: We will excuse you. Juror 41, are you coming up?

Juror no. 41: I was looking yesterday in the newspaper and I saw the defendant. There was something about him. I can’t be fair. There was something that didn’t look right.

The Court: All right. I’m going to excuse you. Juror Number 59, come on up.

Juror no. 59: Your Honor, totally he is guilty and in no way can I let him slide out of anything because —

The Court: Okay. Is that your attitude toward anyone charged with a crime who has not been proven guilty?

Juror no. 59: It’s my attitude toward his entire demeanor, what he has done to people.

The Court: All right. We are going to excuse you, sir.

Juror no. 59: And he disrespected the Wu-Tang Clan. (...)

And meanwhile, the thoughtful, careful people I know who take civil duties like this seriously -- and whom I'd actually trust to be able to decide a question based only on the facts presented, rather than their own biases or speculation -- never seem to make it through voir dire. Go figure.

Apparently, I wasn't clear enough about my fundamental point, which serves me right for writing a post with only a few hundred words. Fortunately, Scott Alexander linked here in his August 2017 linkwrap, and commenter gattsuru put my point better than I did:

There are a couple issues here.

From a rule of law perspective, it’s not healthy. He’s not actually being charged for the actions most people think are bad, or that these prospective jurors want to punish him for. You could maybe argue this is a closest-neighbor thing like getting Capone for tax evasion, except that many of the matters that prospective jurors bring up as motivations are things we’ve explicitly decided we’re not supposed to punish, rather than just being hard to prove. American adherence to the impartial jury has always been practiced more in the books than the breach, but “has a punchable face” is absolutely not good even by our low standards.

From a practical perspective, this probably undermines the trial’s honesty. Having two hundred people ejected from the jury pool over blatant motivations like this doesn’t necessarily prove that the actual final jurors were biased — maybe the remainder were genuinely honest, impartial, or avoided media entirely. On the other hand, Abraham couldn’t find ten righteous men, and the judge had to locate twelve jurors.

From a pragmatic perspective, there’s a reason that we tell jurors to put aside information they’ve heard before the trial: the court of public opinion does not bother with standards of proof, custody of evidence, or procedural rules. Shkreli may well be exactly as much of an asshole as the media presentation makes of him. We have rather clear demonstrations across the last couple years that this is not true for everyone given a waxed mustache and projected on the big screen.

It’s understandable that a few people might be unable to put aside their feelings on a topic like this. However, once >94% of the jury pool can not, this indicates a deeper failure. (permalink)

I broadly agree with the point raised by various commenters that it's unsurprising that various jurors were unable to hold objective opinions, and that it's good, considering their biases, that they were honest about them. In particular, I agree with commenter Lirio that "One of the most important parts of taking a duty seriously is recognizing when you are unable to discharge it."

Nevertheless, I'm disappointed that such a low fraction of the population was able to (even claim to) discharge their civic duty here. And, more than that, I am disappointed that the response of what seems like the entire Internet commentariat has been unbridled glee at the difficulty of raising a jury in conformance with rule of law. Even if it's not particularly surprising, I agree that it's far from healthy to be so amused by a failure of justice -- even such an expected one.