Profusion of police shooting videos complicates jury selection

When two Albuquerque police officers went on trial for murder last fall after the fatal shooting of a mentally ill homeless man, things did not look good for them. Police videos appeared to show the man turning away before officers fired. Their release had been preceded by a long history of police violence and followed by six days of protests. But defense lawyers thought they still had a chance — if they could get the right jury.

“A jury was going to make that decision,” said Sam Bregman, who defended one of the officers. “And picking that jury was the single most important aspect of the entire trial.”

Modern jury selection is a dark art practiced by a cottage industry of consultants who promise to sort antagonists from sympathizers using mock trials, questionnaires, exhaustive reviews of social media profiles and even photographs of prospective jurors’ homes.

The scrutiny is likely to be no less intense as jury selection begins this week in two highly publicized police shootings. One, the death of an unarmed black man during a traffic stop in Cincinnati, has already resulted in one hung jury. The other, in which a man’s girlfriend livestreamed the moments after he was fatally wounded in a St. Paul, Minn., suburb, also during a traffic stop, goes to trial.

Choosing a jury has become more difficult as law enforcement violence has become a national issue and the recent profusion of videos of shootings has made prosecutions of officers more common and jurors less inclined to give them the benefit of the doubt.

Prosecutors are looking for jurors who are usually more suspicious of law enforcement — liberals, minorities and people with arrest records — while the defense prefers conservatives, whites and the well-off, who tend to be more trusting of police officers. But those assumptions are not foolproof.

A series of incidents in which videos appeared to contradict police accounts has eroded juries’ trust. “A lot of people look at cops and say, ‘Well, you probably did it because I’ve seen it over and over again on television,’ ” said Thomas P. Baggott, 71, a clinical psychologist in Tucson, Ariz., who assists law enforcement defendants in lawsuits.

That has given the jury selection process in police shooting trials an unusual twist: Discovering whether a potential juror has seen a video of the shooting is crucial. “Many people who want to be on a jury will deny they have seen the video,” Baggott said. “We have to get them to confess to us.”

For prosecutors, it remains excruciatingly difficult to win a conviction against a police officer — juries must vote unanimously, so it takes only one holdout to derail a guilty verdict.

Baggott, who spent 25 years as a Pennsylvania state trooper, was on one side of the jury selection face-off in Albuquerque.

That battle offers a primer for what is likely to occur in the two forthcoming trials. In one, Ray Tensing, who was a University of Cincinnati campus police officer when he fatally shot Samuel DuBose, 43, during a traffic stop, faces charges of murder and voluntary manslaughter. In his first trial, four jurors opposed conviction on either charge.

Tensing is white, while DuBose was black. Last week, the judge ruled that a Confederate flag T-shirt that Tensing wore on the day of the shooting could not be admitted as evidence.

In the other case, Officer Jeronimo Yanez, who is Latino, will stand trial for manslaughter after he fatally shot Philando Castile, 32, during a traffic stop. According to prosecutors, Castile, who was licensed to carry a gun, told the officer that he had a firearm moments before he was shot. Castile, who was black, was in the car with his girlfriend, Diamond Reynolds, and her young daughter.

Her Facebook video of the aftermath has been widely seen, but audio and video from the squad car has not been released publicly and is expected to be shown at the trial.