Connecticut v. Texas: I Prefer Texas On Jury Selection

A friend and I both began jury selection this past Monday. His case was in Texas; mine is in Connecticut. By Friday, he'd not only picked the jury, but had obtained an acquittal. (Congratulations to Mark Bennett.) By week's end in Connecticut, we were a little more than half-way through the process of picking a jury; we've budgeted another week to complete jury selection. (In January, it took 17 days to pick a jury in a non-death capital felony case; the trial itself took only two weeks.) What accounts for the glacial pace in Connecticut?

In Connecticut, we have the right to question prospective jurors one person at a time, outside the presence of all other panelists. The process has a fancy name: individual sequestered voir dire. In Texas, and in all other states and the federal system, the process of picking a jury is done on a group basis, with questions put to the group as a whole. I prefer the group method: you learn more about how jurors interact with others, it saves time and it is less expensive for clients.

Plenty of criminal defense lawyers in Connecticut disagree with me, including Gideon, a smart man with a heart of gold. But I am sticking to my guns: Connecticut should abolish individual sequestered voir dire as a matter of right. This time-consuming process of selecting a jury of one's peers ought to be reserved for extraordinary cases upon a finding of good cause by a trial court. Because no trial lawyer really trusts a trial judge not to abuse his or her discretion, I say permit an immediate appeal of a decision to deny a motion for individual sequestered voir dire.

I would not have moved for such a selection process in my current case. My client is accused of murder; his defense is self-defense. We tried the case a year ago and did not get a verdict. The lightning rod issues for Connecticut jurors include the fact that killing was accomplished with a gun. More folks have been excused for cause because of their deep hostility to gun possession than for any other reason. I wish, frankly, I could try this case in a state like Texas where gun ownership is, I suspect, not viewed as prima facie evidence of criminal intent.

I worked with a trial consultant not long ago to prepare for a case. The consultant is not a Connecticut resident. He suggested certain questions to ask during voir dire. "But those questions are clearly objectionable," I said at one point. "No matter," the consultant said. "You will have anchored the idea in the minds of potential jurors; it will also look as though the state is trying to hide something."

Such a cat-out-of-the-bag voir dire might actually work -- once. Gerry Spence, for example, is a master of the doleful eye roll. "I'm sorry, judge," he might say. "I didn't know you'd think it wrong to address this truth." That might work the first time, but when you see a different panel of jurors each and every day, you have no excuses on day two, three or four for gonzo tactics in voir dire.  Individual voir dire paradoxically deprives the defense of great tools to educate a jury by means fair and foul about trial themes.

And let's not forget the matter of cost. It takes money to run a law practice. Divide your overhead by the number of days a week you work. My firm is larger than it should be, I suppose. I should charge tens of thousands of dollars for the time it takes to pick a jury alone. But who has that kind of money? A judge I know told me the other day that in his view the length of time it takes to pick a jury is killing misdemeanor trials: people plead guilty because on a cost-benefit analysis it makes more sense to pick up a minor ding on their criminal record that it does to take a second mortgage, if you can find a banker foolish enough to lend you money knowing full well you might be in prison when it comes time to repay the debt.

Picking two jurors a day is a good pace in Connecticut. Picking three or more is extraordinary. In most states, jury selection takes a couple of hours. Does anyone really believe the quality of justice is better in Connecticut?  Perhaps Gideon does. But I have my doubts. I think I'd rather be in Texas.

Comments: (2)

  • I would say, about twenty minutes on average for e...
    I would say, about twenty minutes on average for each prospect, whether qualified or not, the same as my experience in CT. Given that the judge is in a extremely powerful position to direct the outcome of a criminal trial--which I have personally witnessed her in Mass.--thru tricks of jurisprudence not apparent to the untrained eye and ear, I believe judge-administered voir dire is unfair and unacceptable, certainly for the defendant.
    While not perfect, I much prefer the CT system. And I reiterate, if the courts worked a full day, instead of 1/2 day, juries could be selected twice as fast. So it seems to me as if Norm wants to throw the baby out with the bathwater. There are plenty of other things wrong with criminal jurisprudence in CT. Individual sequestered voir dire is not one of those things in my opinion.
    ALL RISE! Court is in recess?
    Posted on September 4, 2010 at 1:53 pm by william doriss
  • There's another thing Texas does very well: It sen...
    There's another thing Texas does very well: It sends more defendants to death row and the electric chair than any other state. You forgot to mention that, Harris County-breath!
    I have previously posted my support for the current system of selecting jurors in CT, whatever you want to call it. This is based on my own experience as a defendant at GA 23, 2002, where I helped select my own jury. In fact, the defense table allowed me, the defendant, the final say as to whom we would accept or not accept to serve on my jury. I am grateful for that privilege. I would not have it any other way, and believe it may be the best thing the CT system has going for it.
    Here's the problem as I see it, as previously written by me, if not posted: The CT courts do not work a 'full day', not by any measure. Court begins at 10:00 a.m., whereas in most other jurisdictions, it begins at 9 o'clock. By the time everyone assembles--ALL RISE!?!--you've lost anywhere from 5 to 30 minutes, depending upon the day and the court. Now comes 'housekeeping' matters which on a daily basis take up at least 15 minutes and may stretch another 30 or 45 minutes.
    After all that, the jury is called in (five minutes) and reminded of their Constitutional duties and not to discuss the case with anyone, not to read the newspapers or watch the news on TV. Now the jury is excused to the deliberation room and jurors are now called out individually for voir dire. By now, it's eleven o'clock, or later,... never earlier.
    The prospective juror comes out and is questioned briefly by both prosecutor and defense attorney, in turn. If it is the defense's turn to use an 'peremptory' challenge, there may be some kibbitzing between attorney and client before a decision is made. In my case, no prospective juror was in the box for much more than twenty minutes. That was about average. For every juror accepted, two or three were dismissed.
    If you do the math, one juror is selected every hour, or hour and twenty minutes. When twelve o'clock arrives, court adjourns for lunch, which is supposed to be one hour, but is more like an hour and fifteen minutes or 1 1/2 hours.
    So now it's 1:30 p.m before court resumes. Between that time and 3:30, two more jurors are selected, for a total of three a day. But wait! Only three hours, give or take, were devoted to selecting the jury. Most of us with jobs, whether in the private or public sector, work seven or eight hours a day. If the CT courts worked anywhere near a full day, five or six jurors could be selected in a day, instead of two or three.
    At my trial, eight jurors were selected in three days of court time, approximately three a day. I don't see anything objectionable or unreasonable there at all. It could have been done in 1 1/2 days if the court worked a seven or eight-hour day.
    In Massachusetts, where I now live, voir dire is conducted by the judge himself in a two-part proceeding. First, the judge administers 'group voir dire' to groups of twelve prospective jurors. This is when general instructions are given and general questioning is administered. For example, does anyone here have any health problems which might interfere, or children to care for...? This does not take too long. This is then followed by individual voir dire of each prospective juror who enters the box alone and unaccompanied.
    The judge conducts the voir dire at this point individually and sequentially, and makes the final determination as to whether each prospective juror is 'qualified' or 'not qualified'. The attorneys do not participate at all, UNLESS they object for 'cause'. If there is such an objection for cause, the objection is made in open court, the prospect is usually excused momentarily to be followed by a sidebar,... or some variation of this. A final decision is made by the judge. This whole process can be as short as five or ten minutes to, say, forty-five minutes per prospective juror.
    Posted on September 4, 2010 at 1:50 pm by william doriss

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