Rowland II -- Is Voir Dire at Side Bar Even Legal?
Some contend that trials, especially criminal trials, are won or lost during jury selection. Although jury selection is intended merely to assure that litigants get a fair trial, jury consultants and savvy lawyers spend a great deal of time trying to frame the questions they ask jurors so as to predispose jurors to see the evidence their way, a process known as “indoctrination.”
One would think, therefore, that a judge would take special pains to make sure that jury selection is open to the public. If the game is won or lost at hello, shouldn’t the public get a chance to see the questioning?
Instead, in the case of United States of America v. John G. Rowland, certain portions of jury selection will take place in secret, at the sidebar of United States District Judge Janet Bond Arterton, where lawyers and the judge will be permitted to question potential jurors in a manner no one else — and that means you — can hear.
The former governor is once again in the federal dock. This time the claim is violation of campaign finance laws for receiving money under false pretenses for work he did for Lisa Wilson-Foley, a former congressional candidate . (The last time Rowland faced federal charges, it was for his conduct as governor; he pleaded guilty to fraud and tax charges and spent 10 months in federal prison.) If convicted here, he’ll likely do far more than 10 months.
Plenty of folks are interested in Rowland II. It’s not just that the former Republican wunderkind has fallen from grace; he’s now back for a repeat performance as a defendant. Rare is the white-collar defendant who pleads guilty, does time, and then comes back for more.
Of course, from Rowland’s perspective, this second prosecution is all horribly unfair, a low-blow by the feds. Never mind that Wilson-Foley and her husband have already pleaded guilty to their role in illegally paying Rowland, the former governor feels targeted and he is spoiling for a fight. No pleas, he has announced; he’s heading for trial. He’s hired out-of-state counsel to represent him.
Rowland’s lawyer worries that given the high-profile character of the case, it will be difficult to find a far and impartial jury. Maybe, but I suspect in the wake of the recent recession and partial recovery most folks have far better things to do than worry about what happens to Rowland. He’s old news.
In anticipation of trial, Rowland’s lawyer asked the judge for permission to question jurors outside one another’s presence. That is what is known as individual sequestered voir dire. In the state courts of Connecticut jurors are picked that way as a matter of right. It is not uncommon in Connecticut for the process of selecting a jury to take longer than presentation of evidence in simple cases. In state court, lawyers have the right to questions jurors, one at a time, outside the presence of other jurors — but the questioning takes place in open court. Any member of the public or press can attend and watch the proceedings.
Jury selection is entirely different in the federal courts. Most federal judges don’t permit the lawyers to questions jurors at all. And such questioning as is done is done of all jurors collectively assembled in open court. A federal jury can be picked in a couple of hours, although it is an open question just how meaningful it is for judges to bark questions to folks assembled together in open court.
Rowland’s lawyer appears to be concerned that if folks are asked questions in one another’s presence about what they think of the governor, the answers of those who don’t like Rowland will poison or prejudice those with no opinion. He’d prefer to question potential jurors outside one another’s presence, but the judge won’t go along with that. Instead, she’s offering a chance for the lawyers to question jurors at sidebar, outside the earshot of other jurors, and members of the public who are assembled to listen to the case and to see justice in action. Secret sidebar voir dire is a common practice in the Connecticut federal courts.
I wonder if it is lawful, and I wonder why the state’s press corps isn’t up in arms about it. What about the public’s and the press’ right to attend, and observe the trial? Watching judge, lawyers and potential jurors lip synch isn’t meaningful.
In 2012, the United States Court of Appeals for the Second Circuit, the federal appeals court for Connecticut, New York and Vermont, reversed the conviction of a man named Raghubir Gupta, who was convicted of immigration fraud. The reason the case was sent back for a re-trial? During voir dire, members of his family were removed from the courtroom by United States marshals. This removal was ruled to have violated Gupta’s Sixth Amendment right to a public trial.
Unless Rowland’s lawyer objects to sidebar voir dire, Rowland will be deemed to have waived any Gupta-like claim.
But independent of Rowland’s Sixth Amendment right to a public trial is the First Amendment right the rest of us enjoy to watch the show. The Second Circuit confronted this issue not long ago in the federal prosecution of Martha Stewart. When newsmen were excluded from part of jury selection, they protested. The appellate court agreed, concluding that exclusion of the public from any stage of a criminal trial requires, among other things, a compelling necessity and that the court consider reasonable alternatives to closing the proceedings.
Frankly, there is no justification for secret voir dire in the Rowland case. If the case is to be won or lost at jury selection, the public has a right to know what happened. Holding voir dire in secret at sidebar is a far broader closure than necessary. Rowland jurors can be questioned one at a time in open court, outside the presence of the others. Such a procedure takes place daily in the state courts. It might take a little longer, but what’s the rush, judge?