Jan
16

A Pointless Marathon In "Petit" Case

Jury selection starts Tuesday in a New Haven, Connecticut courtroom in the case of State v. Hayes. If the name means nothing to you, that's because you have been seduced by the symbolism of it all: Most folks refer to the matter as the Petit case, using the name of the three victims of the July 2007 rape, murder and arson. You know the case, that's the one where a doctor's beautiful wife and daughters were murdered in the dead of night and the house set afire. The man of the house, Dr. William Petit, escaped, somehow.

The state is seeking death, and that is saying something in New Haven. The state's attorney's office in the Elm City is lukewarm about state killing. One of its most skilled prosecutors won't set foot in a courtroom seeking the death penalty. One senses that death penalty prosecutions are done in out of obligation, not conviction.

But the Hayes case is different. People are wound up about this one. Hayes and his co-defendant, who will be tried separately, singled out strangers. They burst into the upper middle-class home of a popular doctor. They held the family hostage overnight. The wife was taken to the bank in the morning for a withdrawal. At least one of the daughters was sexually assaulted. The victims were tied up. The house set afire. The case has acquired the historic traction of the rape of the Sabine women. The state is seeking blood, and, odds are, it will get it.

But first a jury must be selected. And that will take months. Evidence is set to begin in September. A reporter who plans to attend the proceedings each and every day called me yesterday for comment. "Bring your knitting," I told her. "Watching jury selection in Connecticut is more painful than watching ice melt in a chilly room."

Jury selection in the Hayes case represents a perfect storm of what is wrong with jury selection in Connecticut. Alone among the states, we engage in individual, sequestered, voir dire, with lawyers free to engage in endless individual questioning of jurors outside the presence of all other jurors. In the Hayes case, one of the state's top public defenders, Thommas Ullman, who represents Hayes, is known in routine cases to question each potential juror for an hour or so. In this case, where jurors must be "death-qualified," Ullman will be lucky to get through three potential panel members a day. What's more, the case will be presided over by Judge John Blue, a quirky jurist aching for recognition who has elevated distinctions without difference into an art form. Not since Gilligan's Island has the prospect of pointless dithering been so ominous.

If I am ever in trouble, I want Ullman representing me. He is thorough, passionate and kind. But there is no reason in the world why jury selection, even in a notorious capital case, should take months. Now that the world is watching this case perhaps Connecticut will be shamed into abandoning individual sequestered voir dire in favor of group voir dire.

Connecticut is the only state in the nation that permits individual questioning of jurors in every case, whether criminal or civil. I have just completed nine days of jury selection in a non-death capital case in New London. We have ten jurors. It is expected to take another week to pick the balance of the 12-person panel, plus alternates. The process seems slow as molasses to me, and pointlessly so. Is it any wonder it takes so long to get a case to trial in Connecticut, and that witnesss get lost, or die, or forget what they saw by the time a case gets to trial? Justice denied is justice delayed, we say. But in Connecticut, delay is the norm: That is because in the overwhelming majority of cases it takes far longer to pick the jury than it does to put on evidence.

I am unaware of any empirical evidence that the quality of justice is better in Connecticut. Neither am I aware of any evidence that things are worse here, in terms of outcomes. Anecdotally, my experience suggests that individual voir dire makes no difference at all. I have tried scores of cases in the federal courts, where group voir dire is the norm; I discern no difference in the quality of juries.

Frankly, I favor group voir dire, so long as it is the lawyers, and not a judge, who is asking the questions. Individual voir dire requires that we place an ordinary person in the witness box and then question them, while they sit alone, being pondered by all the strangers in a courtroom. Most jurors are diffident and withdrawn in such a setting. Leaving jurors with their peers while questioning them gives skilled lawyers a chance to get group members talking to one another. My hunch is that potential jurors are more comfortable speaking to one another about common concerns than they are confessing while sitting alone on the stand.

Perhaps some good will come of the Hayes case. The world will get to watch ice melt in the courtroom and will perhaps wonder why we take months to do what could be done in a week. Individual sequestered voir dire promotes delay, is costly and is unnecessary to achieve the ends of justice or a fair trial. Months from now, when they are still picking the Hayes jury and the trees are once again in bloom, perhaps lawmakers will take note and change the law.
Comments (3)
Posted on January 16, 2010 at 8:17 am by William Doriss
In the case of McCowen, 2006, one juror--'Ross'--o...
In the case of McCowen, 2006, one juror--'Ross'--out of dozens called from the jury pool, admitted to the judge that he thought he could not deliberate fairly with respect to the racial disparities of defendant and victim. This man was immediately dismissed,...for not being 'politically correct', for not giving the 'right' answer to that question of UTMOST importance.

I did not believe at the time that this was a disingenuous ploy. I felt Ross was being 'honest' before the court, perhaps the only honest one.

I subsequently met Ross in another context and became friendly with him over several casual encounters. My opinion is that this is a gentle, generous, but coy New Englander right out of the book, a man who bears no malice toward anyone. I believe he was being more truthful than was required during voir dire, perhaps more truthful than all others. Perhaps this was his first audition in a lifetime. I would have picked him for my jury,...if the judge had not intervened.

There is no individual voir dire by prosecutor or defense in Mass. However, if either side has an issue with a particular prospect, he may indicate this concern to Court in a 'sidebar' to which the public and Court TV are not privy. The juror in question is quickly called for a second round of questioning by the judge, and a final determination is then made by same, either sustaining or overruling the objecting party.

If stalling and delaying are legitimate strategies of the defense table, as in O.J. Simpson, this would not seem to be a matter of legislative concern. It would seem to be up to the Court itself to set the outer boundaries of voir dire.

It is a flawed system, no matter how you look at it. It is a flawed system we choose to live with. If it is exceptionally cumbersome, perhaps that in and of itself should discourage the State from bringing false and malicious cases to the criminal trial court, soaking up precious resources. (I am of course thinking of my own bogus cases, manufactured through blatant co-conspiracy of the Court with the State itself, unprecedented in the annals of CT jurisprudence.)

Maybe some day, jurors will be randomly assigned by computer after prospective jurors have passed a course qualifying them for service. Such a course would instruct them in the Bill of Rights and basic jurisprudential practice. I can envision a computer to be programmed to conduct a hi-tech trial and spit out the verdicts in seconds; instead of weeks, months, years. We have the ability to do this. If a defendant does not like the results, he may then opt for a traditional 'appeal'.

P.S., I have successfully fulfilled my jury obligations in the Commonwealth of Massachusetts. No problem! You're welcome. I take jury duty seriously. The law is way too important to be left in the hands of the attorneys and judges.

Posted on January 16, 2010 at 7:26 am by William Doriss
One juror who was dismissed by Judge Nicerson, in ...
One juror who was dismissed by Judge Nicerson, in McCowen, 2006, was a practicing attorney. Professionals are not automatically exempt from jury duty in Massachusetts, a thoroughly enlightened practice. The law was changed some ten or twelve years ago. The attorney told the Court that a four-to-six week interruption of his practice would be an overwhelming burden for him; that he was a 'sole-practitioner' and there was no one to cover for him.

The lawyer was excused all to quickly, I thought. This was a man trained in the 'law' who could have given the remaining jurors insight and guidance during deliberations,... which subsequently took about 35 hours, one of the longest deliberations in Massachusetts jurisprudential history.

This was unfair. What if the prospect had been a working carpenter with a family to support? Would the judge have given him a similar pass? It is unlikely. A subtle bias is thus introduced by the judge in denying the defendant a juror who is qualified in the law.

The entire voir dire process--the selection of twelve jurors and two alternates--in this murder/rape trial took five days, if I recall. Not too long, not too short. Just right. There were subsequent issues having to do with juror 'misconduct' during deliberations which came to light and were examined by Judge Nickerson in post-trial proceedings. And there is also the possibility of the judge's undue interference with the jury during deliberations, which could be viewed as an attempt by the judge to influence the verdicts himself. The jury was 'deadlocked' after about 30 hours of deliberations. This issue was raised by me on the blogs at the time, but are irrelevant to this discussion.

All jurors in the McCowen case were asked if they would be able to consider the facts of the case in a 'non-prejudicial' manner, given that the defendant was African-American and the victim was 'white'. This was like asking a man if he ever beat his wife? (Of course not, not me!) The question itself presupposes the correct answer, and only a moron would be unable to see this.

In my own trial, every juror was asked if they 'loved' pets or pet animals? This was a cruelty-to-animals case. No one in his right mind would answer negatively unless he wanted to get kicked out of the jury pool--and none did.

Posted on January 16, 2010 at 7:02 am by William Doriss
This is certainly a legitimate concern. While the ...
This is certainly a legitimate concern. While the delays in individual voir dire would seem to be interminable on their face in CT, I come at the issue from the other side of the table and remain inexorable in my belief that individual voir dire may in fact be the most virtuous aspect of the criminal trial.

Having gone through a full-blown jury trial in GA 23, State v. Doriss, 2002, I can tell you that the Defendant himself can speed up the process by communicating his desires to his attorney. In my trial, jury selection of six plus two alternates took three days. There really was no need to stretch it out, although we could have. The defense attorney is not the conductor of the orchestra. Instructions from the judge to speed things up would be legitimate. I have seen judges do this on Court TV. It seems to work.

I know Mr. Ullmann, have watched him in action, and have communicated with him. I will keep my opinions to myself. I will say, however, if he had not gone into 'law', he might have been well suited for the opera or the theater. That's not being too offensive?!?

My concerns, not raised by Mr. Pattis, of allowing peremptory challenges, alternately by prosecutor and defense attorney. I noticed that if our side selected to go with a prospective juror too quickly after deliberating--for whatever reason--the prosecutor, if it was her turn to utilize a peremptory challenge, would pick up on that subtle cue with sidelong glances and make that challenge.

In that manner, we were denied our most desirable jurors. When we figured out the 'game', we altered our behavior and stretched-out our deliberations in order to throw her off-game. It worked, until all six jurors and two alternates were selected. Remember, it only takes one disgruntled juror to throw a monkey-wrench into the deliberative stage of the trial.

My attorney consulted me (the defendant) on each and every prospective juror, and my wishes were honored. This is how it should be, and is the best aspect of the CT practice. I was grateful for that privilege and would not want to see it changed.

The trick is to find that one individual juror who can think for himself and NOT be swayed by hysterical or undue 'peer pressure'. And this is why we have experts who come into high-profile trials and coach the defense table on how to pick a jury. This was done most conspicuously in the trial of Michael Jackson, and it worked spectacularly. Voir dire may in fact be the most crucial aspect of the criminal trial, albeit as boring as watching ice melt or grass grow.

In Commonwealth v. McCowen, 2006, I watched the entire voir dire process in person. First, the judge gives 'group' voir dire--as does CT. If at this point, anyone in the pool of prospective jurors has hardship issues or anything else that's bugging him (maybe a hangnail?), he may raise these issues at this point by raising his hand. The judge listens to the prospect's concerns and makes a ruling, generously in favor of the prospect. Issues of child care, for example, would be typical. Or health concerns.

The next step individual voir dire by the judge, and not the prosecutor or defense table. The prospective juror is called and stands before the judge. He is not seated. He is asked a series of twelve-to-sixteen scripted questions of a general nature. If no flags are raised, the judge rules the prospect 'qualified' for juror service and he/she is 'seated'.
For Display:
What is the day of the week?
Confidential:
(Won't be displayed with comment)

Link must be approved, then will show on this page.

x

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Personal Website

www.normpattis.com
www.normpattis.com

Law Firm Website

www.pattislawfirm.com
www.pattislawfirm.com

I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

Pattis Video