Consider my gears ground. I’ve been resisting jumping in to counter the incessant stream of anti-individual voir dire noise emanating from Norm Pattis over the past month or so. I first saw a post on his blog, which was then reproduced in his column in the Connecticut Law Tribune and finally copied and pasted into this opinion piece in the Courant yesterday.
Norm, for some reason, has been crusading against the “cumbersome” and “wasteful” process of individual voir dire that we employ here in CT. What happens, simply, is this: a jury panel is brought into a courtroom, is read some preliminary instructions by a judge and then members are asked to identify if they have any hardships or other reasons why they cannot serve on a jury. Those who do not identify any such impediments are temporarily asked to retire to a room, while those that raised their hands and quickly individually questioned to determine the reason for their inability to serve. A large percentage of these people are quickly dispensed with and then people are brought out individually from the “able to serve” pool to be questioned to determine their suitability for serving on the particular case.
The length of individual voir dire varies greatly: a simple misdemeanor or less-serious felony jury can picked within a day. Murder juries can take over a week or so. Capital juries naturally take longer.
But there are several other problems with his position. He starts with this paragraph:
That’s just patently false.
Many, many jurisdictions besides Connecticut permit individual sequestered voir dire. Let’s talk capital cases, because that’s seemingly what precipitated his tirade against ISVD. By a rough informal survey conducted this afternoon, I have been told that the following states permit ISVD in capital cases:
- Federal
- Alabama (discretionary)
- Arizona
- California
- Colorado (not required but routinely done)
- Florida
- Georgia
- Indiana
- Maryland
- Kentucky (statutorily required in capital cases)
- Louisiana
- Missouri
- New Mexico
- NJ
- NY
- Ohio
- Oklahoma
- Oregon
- Pennsylvania (required in capital cases; individual, sequestered in discretionary in non-dp cases)
- South Carolina
- Tennessee
- Washington
- Texas (statutorily required in capital cases)
That’s 23 jurisdictions besides Connecticut. Almost half the States. Not none. In addition, the results of an informal survey I conducted on Twitter a few weeks ago revealed that more than just CT permit ISVD in non-capital cases.
Norm uses the currently underway Steven Hayes trial in the infamous “Cheshire” case to illustrate his point that ISVD is wasteful, long and useless:
After nine days of jury selection in the Hayes case, four jurors were picked. (Selection of jurors was suspended following an apparent suicide attempt by Hayes.) It is entirely possible that jury selection will proceed at this pace or slower until a panel of 12, plus alternates, is seated. The trial expected to begin in September. Is it necessary to spend months picking a jury?
There’s a bit of disingenuous cherry-picking going on here. Anyone who’s been following Helen Ubinas’ tweets can attest to that. First, let us consider the fact that four jurors were picked. That’s four questioned. Add to that the number of challenges exercised by both sides (10, by my count). So that’s only 14 jurors who could have been seated as jurors over 9 days. The reason that using the Cheshire case an example is a terrible idea is that the case is so polarizing. Only a very small percentage of the panels of 40ish brought in every couple of days was even eligible to be questioned: the rest were excused either for hardship due to the length of the trial and the economy or were simply unwilling to serve due to the nature of the case. So to claim that only 4 jurors were picked after 9 days of jury selection is misleading. In fact, by any honest standard, jury selection in the Cheshire case is chugging along at a fast clip.
Let us not forget that the Connecticut Constitution provides for individual voir dire.
The basis of any argument against ISVD seems to be that it is time consuming and it is costly. Time consuming I will admit, but do we really want to trust juries picked in 30 minutes? And as for cost, voir dire is the least of the money drains. The death penalty itself is a big vacuum that sucks in bundles of money. Better ways to save money would be to trim the fat out of the penal code, get prosecutors to stop overcharging, reduce the lengths of confinement to what is truly needed to punish and rehabilitate and to divert money from the prison industrial complex and “truth in sentencing” to reducing crime. To point at ISVD as one source of wasteful expenditure is rather silly.
Group voir dire is not a panacea. Its problems are well documented. And I shudder all the more when I read articles like this, teaching lawyers how to “make the best of limited voir dire”.You are left to the mercy of judges and juror questionnaires. You are left to the mercy of people willing to admit biases in front of others. You are left to the mercy of people being honest about their opinions and not altering them on-the-fly on the basis of others’ responses.
The point of voir dire, it would seem, is to find jurors who can be fair and impartial, who harbor no hidden biases against certain principles or, heck, your client. I’m not willing to trust that brief questioning in a sea of 40 others will be probative enough to weed out those that are unfit for service.
It boggles the mind that someone who takes the very liberty of another individual into his own hands would be willing to place his faith in a group of individuals, randomly selected within a matter of hours.
Look, there are many people who hold his view. They are all entitled to it. But I’m certainly very curious as to why Norm is choosing this particular moment to launch this one-man assault on the individual voir dire system here in CT.
But instead of taking a good, albeit time consuming, right and turning it into something that is not as desirable for the sole reason of cost, I have a suggestion: next time you’re on trial, just waive the right to individual voir dire. I’m sure the client will understand.
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