It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:
Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.
Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.
And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.
No one contends that the quality of justice here is so superior that others want to copy our system.
Again false: every single person I’ve talked to about individual voir dire has expressed a desire to have that available to them. The fact that various states haven’t enacted individual voir dire is as much a product of their legislators as it is local lawyers’ desire to utilize this tool.
We have a complicated-sounding name for jury selection in Connecticut: individual, sequestered voir dire. The result is that it often takes far longer to pick a jury than it does to put on evidence. It is not uncommon to take a week or so to pick a juror in a serious criminal case.
I have no dispute with this. In a “serious criminal case”, the maximum punishments often range from 20 years to 60 years in jail. God forbid we take a week – which is 5 business days – to pick a jury of 8-16.
Let me explain how a typical jury selection day goes: court starts at approximately 10:00am. 25-40 potential jurors are brought to the court and sworn in. The judge then reads initial instructions which could take up to 40 minutes. Then those who cannot serve due to conflicts of interest or scheduling are excused. It could be close to noon before the first juror is questioned. Often, of a panel of 25, only 10 or so jurors remain who could potentially serve on the jury. So you go through each one. Some may take 40 minutes to question thoroughly, some might be done in 5.
If I’m sitting there with leg shackles and a borrowed suit, watching the State try to pick 6 people who will put me away for the rest of my life, the last thing I give a shit about is the length of time it takes to pick those 6 people and the last thing I want to see is my lawyer be complicit in illusory arguments about “speed of justice”.
It takes a long time to get a case to trial. Our dockets are lengthy. Folks lose confidence in a system when they cannot get their cases heard promptly. It is not uncommon to field phone calls from people looking to replace their lawyer because “nothing is happening” in their case. You can wait for years to get a jury trial in Connecticut in a simple case. Often there is nothing to do but wait.
And this has what to do with picking juries? I’ll tell you what: absolutely nothing. Norm’s complaint is that the legal system is slow – and I’ll let you in on a secret: it’s not. But the justice delayed line is just an appeal to passions and has nothing to do with whether we take too long to pick a jury. Because if you’ve waited 2 years to “get justice”, what’s another 3 days to pick a jury?
When I questioned him on this on Twitter, he made clear that he was referring to civil cases, because he knows as well as I do that in the criminal system any delay in starting trial is almost always at the request of the defense and there really hasn’t ever been a time when the defense is pushing a trial and the State isn’t ready. If I want my trial today, I’ll get it.
I suspect the real reason some lawyers like the Connecticut method is that it builds delay, and legal fees, into the system. In some harried jurisdictions, jury selection in a civil case can take days, even weeks, as the court staff struggles to juggle its many commitments.
Therein lies the crux of what is motivating Norm: the cost to him and to his fellow attorneys who do civil work. The number of days spent in jury selection represents missed opportunity to earn income elsewhere. In civil cases, attorneys work on contingency fees: they get a certain percentage of what damages you win. So, the amount doesn’t change in the end regardless of the number of days worked. The less days worked, the greater the pay per day and additional income can be gained elsewhere.
Now, I don’t want to take food out of Norm’s mouth and so I will acknowledge that it can be a valid argument: but what I take issue with is that he hides it in his forceful arguments, burying it just under the surface. If we’re going to have a discussion of this subject, at least let it be honest.
The fact is that no empirical evidence supports the assertion that we do it better using individual, sequestered voir dire. In fact, the evidence is to the contrary. It takes far longer to get a case to trial in Connecticut than almost anywhere in the country.
Putting aside the fact that there is a whole industry out there that teaches lawyers how to make the best of the limited time they have in group voir dire and to learn to read jurors’ hidden intentions and motions and memoranda passed around for generations on how to get judges to permit greater questioning, which all imply that in an ideal world, criminal defense lawyers would and should have the right to individually question every person who could potentially decide the fate of a client – a fellow human being, where is the evidence that individual voir dire is worse?
And if there is no such empirical evidence – and I’m not sure there ever can be either way – then shouldn’t we ask ourselves: what is the real reason someone wants to change a system that isn’t broken? What’s in it for them?
The fact that he ties the length of individual voir dire to the time it takes to get to a trial should highlight the bait and switch.
Finally, Norm proposes a change to the law: a system where there base-line is group voir dire and, for good cause, we get to have individual voir dire in rare cases.
I propose that if there is to be a change it should be exactly the opposite: individual voir dire unless both the prosecutor and the defendant (not defense counsel) agree to waive it. Let’s see how many do. I suspect the number will be closer to zero than Norm thinks it will be.
As my favorite law professor would say: you’re not even wrong.
Just for fun, here are the court rules for group voir dire in Washington. They scare me:
The voir dire examination of jurors shall be conducted under the direction and control of the Court with the following guidelines:
1) It is expected that voir dire, in most cases, will consume one hour of time or less*. Generally, the Struck Jury Method of voir dire will be used.
2) The Court shall ask all general questions and thereafter shall give leave to the respective parties to ask such supplementary questions as may be deemed proper and necessary by the Court. The parties may submit all proposed general questions in writing prior to voir dire.
3) The Court may intervene without objection in instances of inappropriate questioning and may limit the amount of time each party has to examine a juror or jury panel.
*It took more more than an hour to write this post. Chew on that.