Justice delayed, we’re told, is justice denied. In Connecticut, delay is routine. State lawmakers can change that during the current session of the General Assembly. Lawmakers should reform the manner in which jurors are selected in civil and criminal cases. All it would take is a simple change to one state statute.
Lawyers call the process of jury selection “voir dire,” pronounced “vwah deer,” although westerners like to pronounce it “vor dyer.” It is an old French term meaning “to see, to speak.” It is the process of questioning potential jurors to determine whether they can be far and impartial.
In every other state in the union, potential jurors are questioned as a group, with either the presiding judge or lawyers in the case posing questions. Every federal court in the United States, including those in Connecticut, use group voir dire as well. Only in Connecticut do we question potential jurors one at a time, each outside the presence of all others. No one contends that the quality of justice in Connecticut so far surpasses that administered in other states that others want to copy our system.
Because it’s the law, we have a complicated-sounding name for the jury selection in Connecticut — individual, sequestered voir dire. (Say it quickly tonight at dinner, and watch the reaction of others presence at the table.)
The result is that in many cases, it takes far longer to pick a jury than it does to put on evidence in the case. It is not uncommon to take a week or so to pick a juror in a serious criminal case. Indeed, I just tried a murder case in Norwich where that is exactly what happened — six days of jury selection to try a case concluded in less than a week of evidence. By contrast, I’m in trial now in a federal tax evasion case where it took one day to pick the jury.
It takes a long time to get a case to trial in Connecticut. 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 folks looking to replace their lawyer because “nothing is happening” in their case. The sad fact is, you can wait for years to get a jury trial in Connecticut in a simple case. Often there is nothing to do but wait.
We ended up with this slow-motion form of justice as a result the confluence of two forces. First, the state Constitution, at Article First, Section 19, guarantees to all the “right to question each juror individually.” This right can be satisfied by questioning folks in a group setting. The lawyer’s right to ask questions of each in the group is satisfied simply. Just let the lawyer ask as many questions as the group can tolerate.
It’s a state statute that requires the process to drag on by means of questioning jurors one-by-one, out of the presence of others. Connecticut General Statutes Section 54-82f guarantees parties the “right to examine ... each juror outside the presence of other jurors.” Hence, during jury selection, each potential juror is hailed into court, plopped either in a witness box in criminal cases, or summoned to sit with lawyers wherever space can be found in civil cases, and questioned alone.
Plenty of lawyers like individual sequestered voir dire. I heard one dean of the plaintiff’s bar opine once that “real lawyers” like the way we do things, apparently trying to do by fiat would he could not accomplish by argument — persuade folks that Connecticut’s system of selecting jurors is superior. I suspect the real reason some lawyers like the Connecticut method of selecting juries 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, on end, as the court staff struggles to juggle its many commitments. Having tried many cases in the state and federal courts, it is obvious to me that there is little qualitative difference between a jury selected in a group-method, as is done in the federal courts, by contrast to the costly state method of sequestered voir dire.
There certainly are cases so sensitive, so complex, that questioning potential jurors outside the presence of others might make sense. But this determination should be made on a case-by-case basis. Let lawyers who think they need a week to do a day’s honest work persuade a judge that Connecticut’s costly selection mechanism is necessary. I repeat: No other state in the nation does it the way we do. Neither does the federal government. I am aware of no nation on Earth that picks juries the way we do.
The Connecticut Trial Lawyers Association will resist these changes to the death. The lawyer’s lobby doesn’t want to change the way we do business. Why should it — changing the law is sort of like telling a cabby to turn the meter off when the engine is idling. But the fact is that no empirical evidence supports the assertion that we do it better in Connecticut 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 it does almost anywhere in the country.
Here’s what’s necessary to change the law. Amend Section 52-84f of the statutes to read as follows: “There shall be a rebuttable presumption that potential jurors shall not be questioned individually, outside the presence of all others.” In legal-speak, a rebuttable presumption is sort of like a default setting. It tells a judge that in the absence of other good reasons, it is presumed that the prescribed way of doing things should be followed.
Yes, change is frightening. We’ve done it our quaint, and now antiquated, way for many years here in the Land of Steady Habits. But we should embrace this change as a means of increasing public confidence in the courts. If lawmakers doubt the wisdom of this view, ask a few judges to come testify about what’s going on in the courts.
They’ll testify that the way we pick juries now adds nothing but cost and delay to an already over-burdened system.
Reprinted courtesy of the Journal Register Co.
Laws banning assault weapons, prohibiting clips capable of carrying dozens of rounds of ammunition, and requiring background checks of all gun purchasers will be about as effective in stopping gun violence as selling chastity belts in red-light districts. Most murders are crimes of passion and impulsive opportunity. Now that the United States is awash in guns – with approximately 80 firearms for every 100 people – lethal violence is everywhere.
Ask young men growing up in the nation’s inner cities. They’re dropping like flies in places like Chicago. We’ve our share of the craziness here in Connecticut, as well.
I’ve handled too many cases involving young men arguing about a woman, a liquor bottle, or nothing at all. The cases go something like this: A night out on the town, with a stop at a night club. Or maybe just some street-corner chatter. Someone says something stupid – the sort of thing we’d give someone a shove for years ago. A threat is made. An angry young man leaves, and then returns with a handgun. Bam, Bam, bam, and a few choice words, and there’s a dead body on the ground. All present run for cover. In the days and weeks that follow, the police cajole a few eyewitnesses into testifying. Plea offers in this case are typically 30 to 35 years in prison. Lose at trial, and your client is lucky to be sentenced to 45 years behind bars.
These cases are heart-rending punches to the gut, costing, as they do, two lives, that of the murdered victim, and, that of the shooter.
Too often both the victim and the shooter in these cases are young black men. They were dying by the dozen each week across the United States long before Newtown. It wasn’t national news when the victims were inner-city kids of color, and these victims aren’t getting slaughtered by gun-toting Rambos carrying assault weapons. Handguns are the death-dealer’s weapon of choice among urban youth.
"What’s your problem with Operation Longetivity?" a voice said as I stood on line in Dunkin Donuts in New Haven the other morning. I didn’t recognize the man who asked the question. He told me he was a probation officer. He was a brute block of a man, about 50, black, and with a world-weariness that told me I could trust him. He was asking me about the new federal initiative to jump on young men with guns.
"The feds don’t have any business enforcing gun laws in the cities," I said. "It’s like the war on drugs – it’s going to devastate communities of color." He knows I am right. He is a plantation master for those released from prison, but living on the state’s leash.
"Did you know that the latest thing is kids renting guns for drugs?" he said.
"How’s that work?"
"You can rent a gun for a day or two in exchange for drugs."
Far too many guns are finding their way onto city streets by suburban kids who steal a gun for the parents and then trade it for guns.
We both shook our heads. It is, indeed, a crazy world. Amid all the talk of gun legislation in the wake of Newtown, no one is talking about what it will take turn the killing fields on our city streets into places of peace.
We need handgun legislation with teeth. I say lawmakers should create a statutory fine scheme. Whenever a handgun in used in a murder, the manufacturer of the gun should be fined $200,000. Every dealer who put the weapon in the stream of commerce should be fine $10,000 in such cases. Every registered owner should be fined $5,000. I’ve a hunch that once these fines started adding up, fewer guns would find their way onto the streets and into the hands of young who use them to settle trifling grudges.
We’re playing at gun reform just now, and ignoring the inner cities. I suspect that’s because a lot of folks just don’t care if one black man kills another. In too many circles, I suspect such crimes are twofers, getting two African-Americans off the street, one by death, the other by prison. Deny it if you like, but only after soul-searching, ye white suburbanites.
We get the law enforcement we deserve. I say hit the gun lobby in the pocketbook, and hard. You want to own a gun. Fine. Pay for the consequences of their misuse.
Reprinted courtesy of the Connecticut Law Tribune.