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.
