Wednesday, December 29, 2010

Voir Dire, Oh Dear!

By Donna R. Gore, M.A.

(Instructions in the Voir Dire Criminal Jury Process- Judicial Branch State of Connecticut)

“In a moment I will excuse you from the courtroom. Then each of you will be invited back into the courtroom one by one. (Author’s emphasis) You will be seated in the witness box and each of the lawyers will ask you question. If you do not understand the question, just say so and the lawyer will re-state it for you. Remember please, there are no right or wrong answers to these questions. In response to each question, simply give your honest response. That is all that is needed. The purpose of this questioning process is to permit the lawyers to and their clients to decide if they wish you to be a juror in this particular case.

Before I excuse you, the attorneys will introduce themselves and each of them will make brief comments to you. They will read you a list of names of people who are in some way connected to this case, or who may come before the court as a witness. Listen carefully to the list to see if you know any of them. If you do, do not talk to others about it, but let me know when you come back on your own.

While you are under consideration as a juror in this case, do not discuss the case or reasons why you cannot serve with the others on the voir dire panel. There will be (six/twelve) jurors and two alternate jurors selected for this case.” 

The above instructions are supposedly written as if spoken/written by the presiding judge and written in a concrete and generic manner such that all prospective jurors can understand. (However, this author could argue that it could be written with better quality and clarity.) (i.e. “Let me know when you come back on your own…..” could be clarified to state, “Please inform me when you return to be questioned individually, that you may know one of the participants”.

No matter, this is not a writer’s guide and it is well known attorneys are more accustomed to writing legislative gobbledygook.

I digress from the point, that these instructions are very unique regarding voir dire procedures. *** In fact, the State of Connecticut in its most judicial and thorough manner decided long ago to be the only state in the country that guarantees each attorney the right to question potential jurors individually in State Court trials rather than the more efficient “group of box voir dire” procedure.

Connecticut has the unenviable reputation for having the slowest jury process among all 50 states. (CT General Statutes 54-82f guarantees the right to examine “… each juror outside the presence of other jurors.” Although group voir dire has been used in Federal cases or private practice since 2004, there has been an apprehension to change the statutory guarantee of juror questioning in isolation. In addition, it is extremely expensive and inefficient.

Well known Connecticut Criminal Defense Attorney, Norm Pattis, a defender of the underdog and down trodden defendants writes about this process in the CT Law Tribune, January 2010.

He refers to the trial involving my friend and fellow homicide survivor, Dr. Bill Petit, Jr. Attorney Pattis states, “Ice is melting in a New Haven Courtroom and the world has turned out to watch… Potential jurors will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months.” (Author’s Note: In fact, jury selection began on January 19, 2010 and ended on June 2nd. )

In addition to juror selection in isolation, other defendant imposed delays contributed to the torturous process for the Petit family and Connecticut citizenry.

Ne’er do well, hopelessly misunderstood and desperately drug addicted (or wanting to be drugged) defendant Hayes thought he could call the shots and manipulate the system, even requesting to “skip jury selection.” The epitome of arrogance! In the end, he could not.

The first delay occurred on Feb. 1, when Hayes was found unconscious in his prison cell after taking an overdose of prescription medication. Hayes' attorneys argued that his living conditions in prison were "inhumane," with a subsequent hearing held about the defense allegations.

On March 15, jury selection resumed, but was suspended again when Judge Blue ordered a mental health exam to determine whether Hayes was competent to stand trial. Once the court deemed he was competent, lawyers began selecting jurors again in early April. As of June 2nd, a total of 48 selection days, a panel of 12 regular jurors, six alternates, and two backup alternates were selected.

In the mix there were jurors who were excused… and even a brief hospital stay for the judge for which he profusely apologized. Prosecutors began presenting evidence in the case Sept. 13.

According to newspaper accounts, in the Steven Hayes trial, attorneys for the prosecution and defense were each allowed 38 peremptory challenges (Objections to retain the juror). Public defenders used 30 challenges while prosecutors used 29. When interviewed, Dr. Petit offered that in his opinion, 25 to 30 excellent jurors were excused in the process.

Getting back to the voire dire process itself… those who support this notion of sequestering and questioning individual juror done by one state that the potential juror, “would not be as candid” in their response if they were subjected to group observation. Another supposed reason is that a prospective juror may “make a declaration that taints the panel.”

Attorney Pattis and others beg to differ stating, “… Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a sidebar… better serving the juror’s privacy.” Attorney Pattis’ solution is to repeal the legislation or amend the state constitution.

As a homicide survivor, I have not been totally exempted from mailings and the initial jury selection process. I have been told that I could be requested to serve on a civil jury versus a criminal case if I made it through the voir dire process.

(Whether a violent crime survivor should be considered for any type of jury is a topic for another blog and serves to expose the inefficiencies of their computer systems, sharing of information and lists upon which they draw names, such as the Department of Motor Vehicles, and voter registration.)

During my last voir dire experience, when it was learned that I was a homicide survivor involving a defendant who was accused of robbery, (as was the current defendant,) a peremptory challenge was issued by the defense. My excusal may have been for other reasons such as not giving the “true answer” to the difference between “being innocent and being found not guilty.”

Upon reflection, I know the difference. However, while seated in the witness box, it sounded like a trick question to me… Perhaps I was excused as I volunteered to the judge in good conscience that although I wanted to perform my duty, my future career goal was to be a Victim Advocate by occupation… which clearly draws the line in the sand as to which side you lean toward.

What about the financial cost of juror participation? In Connecticut, if you are employed full time, your employer must pay you your regular wages for the first five days of jury service (anything more than 30 hours per week.) If you do not work full time, the State must pay you up to $50.00 per day for out of pocket expenses (with proper documentation) for the first five days of jury service only.

Starting on the sixth day of service, the state pays all jurors $50.00 per day and each subsequent day of service.

Let’s see, including the court costs, initial enormous jury pool, that’s 48 selection days X 12 jurors and two alternates. Whew! No wonder the State of Connecticut is in severe deficit!

As for the length, and content of actual questioning, it could be pared down in scope of to exclude, for example, questioning about the occupations of all family members.

Formulating questions to get biases can be a slippery slope. Only those most obvious are ever revealed in the span of time given. Jurors may intentionally make biased statements in hopes of being excused immediately. However, judicial personnel are not easily fooled. Those preemptory challenges are used strategically.

There are many criminal justice reforms that were put on the legislative books following the 2007 home invasion case. Some strides have been made, but a majority of those reforms have been “put on hold” as our state dipped into those funds and essentially has been “robbing Peter to pay Paul” for other programs. Will voir dire be on the priority list of changes with a new Governor at the helm? It is doubtful, as there are other more pressing needs…

We have new language to refer to criminal justice actions in Connecticut. Whether in the marble laden halls and cherry wood meeting rooms of the Legislative Office Building, on street corners or in our hometown newspapers, the term is “before/after Cheshire”, the countrified, sleepy, affluent little town once the home of this author and more recently by the Petit family (in addition to a series of Connecticut Correctional facilities) will have this indelible reputation. Such a legacy no one could have foretold….

Are we serving the best interest of families personally encountering homicide in Connecticut with our current voir dire system? Do we serve those who will be subjected to this system in the future?

Justice delayed… is justice denied when we wait for months and years to have our day in court.

Donna R. Gore, M. A.

Homicide Survivor in Connecticut

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