"Ladies and gentlemen, this next question is another one of those two-part questions, okay, so listen carefully," the trial judge began, in one of two cases decided Friday demonstrating unhelpful ways to conduct voir dire. You can picture the jurors looking up. The judge continued:
If your answer to the first question is yes, don’t raise your hand right away, but listen very carefully to the second question. If your answer to that question is yes, you must raise your hand and come up and talk to the Court about the issue. Okay?
Okay . . .
Now, here is the first question. And, again, you don’t need to raise your hand. Listen carefully. This is a question about you personally, you personally as well as any close family member or close personal friend. Is there anyone in that group, either you personally, close family member or close personal friend, who is either presently or previously employed by any law enforcement agency?
Good question. But of course no one is raising a hand yet.
Now, if the answer to that is yes, listen very carefully to this question. As a result of that experience that either you had personally or are having right now as an employee, as a result of that experience or as a result of the experience of a close family member or a close friend, . . . do you believe that you, that you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?
Do you mean . . .
Wait a minute. One of those people could be a career police officer and the lawyers would never know it? That's right -- and once the compound voir dire questions were finished, the lawyers also had to rely on jurors' assessment of their own bias to learn whether prospective jurors knew the other jurors; were involved in criminal defense work; were lawyers; had served as grand jurors; or had served as jurors in a criminal case before.
The D.C. Circuit agreed that "[t]he defect in that question is obvious," and vacated the conviction on Friday in U.S. v. Littlejohn. The court matter-of-factly recognized the reality of unconscious bias, citing its own recent case, U.S. v. West:
“[W]hether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror’s own assessment of self-righteousness without something more.” And as West recognizes, such self-evaluation is particularly troublesome when jurors are asked about the potential bias caused by their employment history. Even the most scrupulous juror may not recognize that “lingering loyalty [to a past employer], friendship of persons still employed there, or knowledge of agency procedures” may color his or her judgment.
(I omitted citations in the excerpt.)
The Littlejohn opinion is carefully limited; in fact, the defendant in West lost on appeal, despite similarly flawed compound voir dire questions. But under the “particular circumstances of this case,” the D.C. Circuit said, "the district court’s compound questions denied Littlejohn 'a full and fair opportunity to expose bias or prejudice on the part of the veniremen.'”
On the other hand
The defendant didn't do as well in Friday's other confusing-voir-dire case, Nicklasson v. Roper, a death penalty habeas case from the Eighth Circuit. In the "death qualification" phase of voir dire (what a phrase to have to use), the trial court explained the allegations asked the jurors, if they found Nicklasson guilty:
(1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court’s instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole.
Apparently no one explained that these were alternative choices:
Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.
Not pretty, but this is habeas. "Were we reviewing this case on direct appeal, we might have come to a different conclusion," the Eighth Circuit said. But it held that the Missouri Supreme Court wasn't "objectively unreasonable" -- the federal habeas standard -- in upholding the conviction. The case is one of the first to cite the Supreme Court's latest death-penalty-juror case, Uttecht v. Brown, stressing the importance of the trial court's ability to observe jurors first-hand.
(Image by Tall Chris at http://www.flickr.com/photos/tallchris/14288097/; license details there.)
