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?
Richard Kopf, a U.S. District Court judge in Nebraska, writes a blog. The other day, he vented about the Supreme Court's recent decision in Hobby Lobby, the decision that extended the fiction of corporate personhood to the point of now offering the law's protection to "corporate" beliefs. The owners of Hobby Lobby can have their corporation opt out of providing contraceptives under the Affordable Care Act.
Writes Kopf about the court's tendency to decide, on a 5-4 basis, significant issues dividing the country: "Next term is the time for the Supreme Court to go quiescent – this term and several past terms have proven that the court is now causing more harm (division) to our democracy than good by deciding hot-button cases that the court has the power to avoid. As the kids say, it is time for the court to stfu."
That's right, a District Court judge broke ranks with his superiors, and he dropped a coded f-bomb to signal his disgust.
Kopf may be regretting his candor. He's posted a private note he received from a lawyer he respects on his blog page. The lawyer urges him to stand down. Kopf's inflammatory commentary is bad for the bar, and for the courts: it promotes disrespect for the judiciary, the lawyer says. Indeed, it might even be a violation of the Code of Judicial Conduct, which requires judges not to engage in conduct that might be prejudicial to the administration of justice by, for example, lowering the public's confidence in the judiciary. Kopf announces he's going to sit on this topic for a while, and decide what his duty requires.
The soul-searching is commendable. Kopf is a visible player in the courts: he doesn't just opine on what others do, he issues opinions. He is a player in justice's game. Unlike most legal bloggers, he walks the walk and talks the talk.
However, suggesting that because he is a judge he cannot speak his mind is troubling. Yes, he is an officer of the court, and the integrity of his corps matter – lawyers have been disciplined for speaking too bluntly about judges in public fora. But should the judge keep silent and pretend all is well in the law's crystal palace?
Not too many years ago, a potential judgeship was waved before my eyes. Was I interested? Ultimately, I concluded I was not. The primary reason is that I enjoy being outspoken, and felt a judgeship would require a muzzle I did not want to wear. Frankly, it never occurred to me that one could be a judge and a provocateur. Yes, there are the Richard Posner's of the world – well, actually, there's only one Posner – writing provocative books while sitting as a judge on the U.S. Court of Appeals for the Seventh Circuit. But Posner's books stand to most blogging as does gold to mold. Posner writes from a polite insider's perch, justifying the ways of power to lesser mortals; most blogging is akin to Edvard Munch's "The Scream" – writers tell others the sky is bleeding and paint in vivid tones.
Kopf enjoys a lifetime appointment. His blog writing is not an impeachable offense. He will not be removed from office for speaking the truth. Nor should he be.
It might discomfit the robe-wearing class, and those who take great comfort in the illusion that all is well in this the best of all possible worlds, to silence Kopf. If the judge would just apply legal doctrine to the facts presented before him, if he'd just process the cases brought to him, if he'd just keep the assembly line of justice well-oiled and greased, we could all just go about our merry way. All Kopf has to do is keep playing wizard of Oz and he'll be a kept man for life. That's the safe course.
That he's elected to rip back the curtain and show a little something to the rest of the world is no cause for regret. There is a broad crisis of legitimacy in this nation. Left and right talk past one another. We debate meaningless issues while our infrastructure crumbles and millions of Americans are without work, without health care and without hope. It's no mystery that many Americans think the courts don't work. That Kopf dared approach the crisis, even in oblique and profane terms, is no cause for censure.
Odds are the blue-noses and tongue-cluckers of the bar will persuade Kopf he can't speak his mind and wear justice's robes. Candor has its limits; too much truth is a dangerous thing. If so, I hope Kopf will keep the courage of his convictions and walk away from the bench. We can always find another spineless time-server to pretend that all is well amid the rubble. What's lacking are truth-speakers who can walk and talk the truth.
Read more: http://www.ctlawtribune.com/id=1202662323625/Norm-Pattis-Blogging-Judge-Should-Not-be-Muzzled#ixzz36vF3Sqrx