Juries

Waiving the Right to a Public Voir Dire (Commonwealth v. Lavoie)

As some readers of this blog are aware, criminal defendants have a constitutional right to a public voir dire (Presley v. Georgia).  What is less clear is whether this right can be waived and if so by whom?  These issues were decided recently at least for the state of Massachusetts in Commonwealth v. Lavoie.

In Lavoie, the criminal defendant was on trial for murder. During jury selection of his trial, court officers instructed the defendant's father, mother and sister to leave the courtroom.  This request was made in order to leave enough room for the jury venire.  Apparently, the judge was unaware that the defendant's relatives had been asked to leave the courtroom.  The defendant on the other hand knew this fact and was a little bothered about it.  However, he never raised the issue with his attorney.  At a subsequent hearing held after the defendant's conviction, counsel for the defendant stated that it was not his usual practice to object when court officers cleared the court for the following reasons: (1) court officers have a difficult job; (2) he doesn't want family members sitting near potential jurors; and (3) family members can be a distraction.

Based on these facts, the Supreme Judicial Court of Massachusetts held that counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy.

 

 

 

 

 

Verdict Stands Even With Dishonest Juror

CBS NEWS: Judge refuses retrial for former Ill. powerbroker

A federal judge denied a retrial on Tuesday for longtime Illinois powerbroker William Cellini, rejecting defense arguments that the 77-year-old didn't get a fair trial because a juror supposedly lied about her criminal past during jury selection

Chicago Sun Times: Jury selection needs reform‎

‎Late Tuesday, U.S. District Judge James Zagel put an end — for now — to the latest flap over whether a juror’s failure to disclose her criminal background had unfairly tainted a high-profile federal conviction.But Zagel’s finding that Illinois Republican powerhouse William Cellini is not entitled to a new trial won’t resolve the underlying problem of how far the courts should go in investigating jurors and how to avoid ending up in the same pickle again.

Inadequate Voir Dire Leads to Murder Conviction Being Overturned (Commonwealth v. Toolan)

This week the Massachusetts Supreme Judicial Court, in Commonwealth v. Toolan, overturned the murder conviction of Thomas E. Toolan III.  The defendant, a 44-year-old former Manhattan bank executive, had been convicted of killing his ex-girlfriend on Nantucket in 2007. The Supreme Judicial Court, which based its reversal in part on U.S. v. Skilling, found that the trial judge

did not conduct his examination [voir dire] in a way that would have allowed him to make a sound determination as to whether each juror was impartial despite the exposure. Instead, he shifted the burden of assessing impartiality from himself to individual members of the venire. [FN26] Jurors' answers to individual voir dire questions on the defense of lack of criminal responsibility provided some additional insight into their willingness to return not guilty verdicts, but did not directly address the impact of publicity and local community attitudes and their opinion on them.

Because the voir dire was insufficient to support a contrary conclusion, it is appropriate to assume in the context of this case that jurors who did not state otherwise were exposed to negative pretrial publicity.

This is the second recent high-profile case in which a state court has called into question the voir dire practices of the trial judge.  In June, the NY Court of Appeals, in People v. Owen Steward, overturned a defendant's robbery conviction because the trial judge failed to identify prospective jurors by name, initials or panel number and only allowed defense counsel 5 minutes to conduct voir dire on each venire panel which generally consisted of 16 prospective jurors.

Conviction Overturned for 5-Minute Voir Dire

Yesterday, the NY Court of Appeals decided People v. Owen Steward. In Steward, the NY high court overturned the defendant's robbery conviction because the trial court failed to identify prospective jurors by name, initials or panel number and only allowed defense counsel 5 minutes to conduct voir dire on each venire panel which generally consisted of 16 prospective jurors. For those practitioners who believe they don't get enough time during voir dire, this is a good case to keep in your briefcase.

For more on Steward see the following articles.

Thompson Reuters News & Insight: High court overturns conviction for five-minute voir dire

Wall Street Journal: NY top court orders new trial in DJ Envy robbery

Closed Voir Dire Leads to Another Reversal

People v. Martin 2011 NY Slip Opinion 03885

The issue presented for our determination is whether defendant's right to a public trial was violated when the trial judge sua sponte closed the court room, specifically ejecting defendant's father during voir dire without considering any alternative accommodations. We hold that such an action violated defendant's right to a public trial and warrants reversal...

The ability of the public to observe questioning of this sort is important, both so that the judge, the lawyers and the prospective jurors will be conscious that they are observed, and so that the public can evaluate the fairness of the jury selection process...

Play-by-Play Jury Selection

For those interested in the jury selection (voir dire) of the Ryan Widmer murder trial or just want to know what type of questions are asked by attorneys during a high-profile murder trial see below.

9:50: a.m. Juror number 98 is coming into the courtroom. He is sitting alone in the jury box. He has been following it on TV. Bronson asks him if he can put his conclusion aside and listen to the evidence. Juror responds, “This is such an important case and I probably couldn’t be swayed at this point... I’m afraid I’m too far over.” Assistant Prosecutor John Arnold is questioning the juror. Juror says he doesn’t believe someone can fall asleep and drown in a bathtub. Defense counsel Jay Clark asks him if he can be fair and impartial. The juror says he would do his best, but no he couldn’t be impartial. Bronson dismisses him.

10 a.m.: Juror number 96 said he thinks there is reasonable doubt. Bronson asks him if he can put aside what he’s heard or read about the case. Juror says he can attempt to do that but isn’t sure he can. Juror said he reads newspapers, listened to the news and his daughter’s boyfriend used to live next door to the Widmers. He has never met the Widmers personally. Arnold asks about the drying experiments. Juror said that jury must have had doubts of their own or they wouldn’t have experimented. Juror said he would not be a fair juror for the prosecution. Bronson excuses the juror.

10:15 a.m.: Late juror being questioned about her knowledge of the case. She hasn’t formed an opinion so she joins the 40 other prospective jurors in Peeler’s courtroom...to continue reading go here.

SCT Says Defendant Has a Constitutional Right to Open Voir Dire (Presley v. Georgia)

As reported by several news sites, the U.S. Supreme Court (SCT) today in Presley v. Georgia decided that a defendant has a constitutional right to an open voir dire.

In Presley, the defendant claimed that his 6th Amendment right to a public trial was violated when the trial court excluded his uncle from voir dire.  The SCT, following its prior decision in Press Enterprise v. Superior Court where it held that the public has a First Amendment right to view a trial, found that the defendant has a 6th Amendment right to a public trial. 

The Court determined that "there is no legitimate reason, at least in the context of jury selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has."

The Court went on to say that "the right to an open trial may give way in certain cases to other rights or interests."  However, the Court noted that "trial courts are required to consider alternatives to closure when they are not offered by the parties."  The trial court in Presley never took this step.

The dissent filed by Justices Thomas and Scalia disagreed with the summary nature by which the case was decided.  The dissenters further argued that the majority opinion "decides by implication an unstated premise: that jury voir dire is part of the 'public trial' that the 6th Amendment guarantees."

UPI.com:Court says jury selection must be open

LA Times:Supreme Court says jury selection should be part of defendant's guarantee of ...

Reuters:Supreme court says jury selection should be in public

Excellent Voir Dire Advice

Listen, Don't Talk

In a recent column in the ABA Journal, noted trial expert Jim McElhaney offers some sage advice on conducting voir dire to include discussing Jim Jeans' three secrets to picking a jury.

“Ask, don’t tell.

“Listen, don’t talk.

“Feel, don’t think.

To read the complete column click here.

Voir Dire Questions--Bryan Kocis Murder Trial

Here are some potential voir dire questions in the upcoming murder trial of Bryan Kocis.  The defendant is accused of murdering Harlow Cuadra, a rival producer of gay pornography. Police theorize that Kocis killed Cuadra because he wanted to work with Sean Lockhart, an actor who was under contract to Kocis. For more background on the trial and charges go here. The voir dire questions are interesting in that they demonstrate the balancing act that attorneys, who don't want to alienate or turn off the jurors, must perform when raising certain topics that many still consider quite taboo.

Publicity

Have you read, observed or heard anything about the charges or facts of this case from any source, including but not limited to Internet, newspaper, radio, television or person?

- Have you discussed what you have learned with any person?

- Have you formed or expressed any opinions as to the facts of the case, the guilt or innocence of the defendants or any sentence that should be imposed?

Would you require one or both of the defendants to take the stand and testify in order to change your opinion?

Because of anything you may have read, observed or heard, would there be any reason you could not be a fair and impartial juror in this case?

Bias related to sexual orientation

The defendants were partners in a committed homosexual relationship. The victim in this case was also a homosexual. Testimony may be elicited regarding the sexual orientation of both the defendants and the victim. Given those facts:

Do you perceive homosexuals are more or less likely to commit crimes or engage in criminal conduct?

Have you, members of your family or close friends ever:

- Made a joke about homosexuals?

- Referred to homosexuals by using a derogatory term such as “fag,” “queer,” etc?

- Felt uncomfortable in the presence of a homosexual, whether in a public facility, metropolitan area or neighborhood?

- Avoided television or media programs where homosexuals would be depicted simply because of that fact alone?

- Remarked about or objected to the demonstration of homosexual civil marriage ceremonies?

- Refused to associate yourself with homosexuals?

Are you conscious of any prejudice or bias against homosexuals?

Bias relating to homosexual pornography industry

Both the defendants and the victim were engaged in the production of homosexual pornography. The majority of this business was conducted over the Internet. Testimony may be elicited about the homosexual pornography industry. Given those facts:

Do you perceive that people in the pornography industry generally are more likely to commit crimes or to engage in criminal conduct?

Would the fact that the defendants were involved in the homosexual pornography industry in any way affect your ability to be a fair and impartial juror?

Are you conscious of any prejudice or bias against those who work in the homosexual pornography business?

Do you, members of your family or close friends hold the belief that pornography of any kind generally leads to the degradation of the morals of the individuals involved in the industry and/or society as a whole?

Capital punishment

Do you believe the death penalty should automatically be imposed every time a person is convicted of first-degree murder?

Given the nature of the case, can you perceive of any problem returning a sentence of life without parole in the event that first-degree murder is the verdict?

Do you have any religious, moral or other objections to the death penalty to such a degree that it would prevent you from sitting as a juror or imposing a sentence of death?