Without a Doubt

by Marcia Clark

That’s right: we didn’t use every single one that we were entitled to exercise. I can understand why a casual observer could assume that we missed an opportunity because of this. And, in fact, our detractors seized upon those four unused challenges, claiming that we could have kicked some of the clinkers and fill the slots with better prospects. No, we couldn’t. Let me explain. During our nightly bouts of solitaire, Bill and I had kept precise tabs on the rotation of candidates within the pool. As days passed, the rating of the average juror in our pool—going by that 1-to-5 scale we’d developed—kept getting lower. Originally, our population had a very strong contingent of middle-class, educated citizens. But remember: the first round of elimination—the “hardship” phase—drastically changed that. The solidly employed middle class had no appetite to serve on this case, and Judge Ito let them off without looking back. There went most of our potential 5s and 4s. Then the defense began their attacks on two categories of jurors: those who were educated and those who weren’t black. Ito let them strike many without using their peremptory challenges. We were left with virtually no 4s and 5s, and only a few 3s.