Juror Disqualification: The Role Of The Ask

The last few days have turned into a juror disqualification series.  Friday listed some issues that might disqualify jurors; Monday talked about ways to prepare for those moments; and Tuesday looked at Monday's death-doubting-juror decision in Uttecht v. Brown. 

There's another point that pulls it all together, a critical factor -- maybe the critical factor -- in juror disqualification.  Over and over, cases seem to turn not on what the juror actually said or did, but instead on how extensively the trial judge questions, or allows questioning of, the juror and the rest of the panel.  To borrow a phrase from fundraising circles, it's all about The Ask.

The Ask in Uttecht v. Brown

Karl Keys at Capital Defense Weekly points out that the Uttecht v. Brown opinion relies heavily on the quality of the trial judge's voir dire:

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like.

Guess the reversals

Whether or not Uttecht v. Brown will end up limited to strong voir dire performances by trial courts, it's not the only recent case to turn on the quality of the trial court's questioning.  It's hard to rank the last several weeks' cases by how egregious the juror's conduct was.  Try it:  which of these trial court decisions do you think would stand up on appeal?

1. In a death-penalty case, to the question whether anyone had a problem with the idea of the defendant not testifying, one juror responded, "I do.  I think he should have to.  I know the law is not that way, but I think so."  Defense counsel asked whether the juror could set aside those thoughts, and he responded, "I don't know."  The trial court refused to dismiss the juror.
2. A trial judge dismissed a juror after she recognized the defendant and "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She had said she could be fair and wouldn't tell the others.
3. A juror complained that the defendant was "eyeballing" him.  Noting that the jury had been “repeatedly admonished not to make up its mind about any issue,” the trial judge left him on the jury.
4. In a death-penalty case, a white juror told African-American co-workers -- at his workplace, away from the other jurors -- that he was “going to the hardware store to buy rope to hang this man with.”  The defendant was African-American.  Questioned later by the trial judge, the juror insisted he was only saying what he thought his co-workers expected him to say, and he had not really made up his mind.  The trial judge left him on the jury but made him an alternate, so he did not deliberate.
5. In a death penalty case, the trial court refused to strike for cause ten jurors who remembered seeing publicity, including one who "related that she knew others who felt he was probably guilty and that she felt the same," one who said "that most of the people in the community at that time believed" the defendant was guilty, one who "was not sure if she could remove all information from her mind during the trial and deliberations," and one, the eventual foreman, who said in voir dire "that he wanted evidence from Appellant to prove his innocence."

And the answer is . . .

Only one of these cases affirmed the trial judge, and it's the one with the most egregious facts.  It's Case No. 5, where the ten tainted jurors remained (and nine deliberated.)  The opinion is Foley v. Parker, decided by the Sixth Circuit on May 17.  Granted, it's the only federal habeas case on the list, but the turning point in the opinion is The Ask:  "[T]he trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged jurors that they could set aside what they had heard about the case and decide it based upon the evidence presented in court."

Each of the other cases is different from the rest, of course -- different facts, jurisdictions, procedural postures, legal standards, and appellate judges.  What they all have in common, though, is that the trial court didn't ask enough:

1. Case No. 1 is Kopsho v. State, a death-penalty direct appeal in Florida decided May 24.  "Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel" in which Mullinax said he thought the defendant should testify.
2. Case No. 2, where the juror recognized the defendant, is People v. Dukes, decided by New York's highest court on May 1 and discussed in this blog here.  In Dukes the trial judge asked the juror what she remembered, and then reflexively dismissed her even though defense counsel objected.  The Court of Appeals reversed, saying the trial judge should have inquired whether she could still be impartial.
3. Case No. 3, the eyeballing case, is U.S. v. Simtob, a direct appeal decided by the Ninth Circuit on May 11 and a favorite of this blog.  (I know I keep bringing up Simtob, but it keeps being relevant.)  The Ninth Circuit sent the case back to the trial court to "determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially," since the trial judge didn't do that the first time.
4. Case No. 4, where the juror talked about lynching, is State v. Loftin, decided yesterday by the New Jersey Supreme Court on postconviction review, not direct appeal.  (The case is discussed here at Capital Defense Weekly.)  The trial judge should have dismissed the juror immediately because his comments were so heavy with racism, the court said -- but more than that, the trial judge should have questioned the other jurors: 

[T]he trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by those views. Therefore, the trial court first should have dismissed Juror No. 4 and then voir dired the jury. In cases in which a jury has been potentially exposed to external influences that could undermine jury impartiality, our courts have not hesitated to make inquiry of the jurors to ensure that they have not been fatally tainted.

The lesson is easy here.  If you're a judge, ask and ask and ask.  If you're trial counsel, be ready, and object precisely.

(Photo by Jilligan86 at http://www.flickr.com/photos/gillian_m/448800043/; license details there.)