I would not normally write about the voir dire of a prospective juror. I respect how difficult it is to answer questions in open court in the presence of strangers. But I am going to make an exception just this once. I am going to make an exception because the prospective juror is a public figure and is now interested in becoming governor of the State of Connecticut. The man’s candid answers under oath are worth pondering.
I was surprised when Ned Lamont surfaced in a jury pool in Stamford in the wake of his race against Joseph Lieberman for the United States Senate. Sure, I knew that a guy named Lamont had run, and sure, the fellow sitting in the back row looked a lot like the politician. But I don’t watch television, except for college football, and I’d only seen a few pictures. I suppose I was also a little star-struck. Ned Lamont? In my courtroom?
When he was called out for questioning -- jurors are questioned one at a time outside the presence of all other potential jurors in Connecticut -- I decided to treat him as I would any juror. I have a stock set of questions designed to test a venire person’s willingness to apply basic legal principals in a criminal case. I sometimes fear that what the criminal law requires of a juror is counterintuitive, and that jurors will follow their intuition rather than the law.
"Suppose the judge asked you to vote, this very minute, on whether my client is guilty or not guilty of any or all of the crimes charged. Based on your life experience, the legal principles you learned about today and what you’ve seen in this courtroom, how would you vote?"
The question is designed to test willingness to apply the presumption of innocence. A vote in the absence of evidence should be "not guilty". That is axiomatic. Yet most venire people say they cannot vote because they have heard nothing. Some say they would guilty; the defendant, after all, must have done something wrong or he would not have been arrested. No more than 10 to 15 percent of jurors answer that they would vote not guilty because they have heard no evidence.
I expected Lamont to fall within the class of those who grasped without tutoring the presumption of innocence. I was wrong.
He looked puzzled, even a little annoyed by the question. He told me he couldn’t vote, because he had no evidence.
"Did you see anything on the film shown to jurors that led you to conclude there were legal principles with which you disagreed that you would be required to follow here?"
"No," he said.
"If I understood the judge, the presumption of innocence means that unless and until the state proves its case beyond a reasonable doubt, if it can, the law requires that you vote "not guilty." Any reservation about doing so?"
"No," he said. I caught a glimmer of what he must look like on the stump, a man fighting for American values and flustered that anyone could doubt him.
"You’re going to think I tricked you in a moment, so let me apologize now," I said. "Can you see how if you used the presumption of innocence we just discussed, your vote right now would have to be "not guilty" because you have heard no evidence?" Most jurors blush a little, or nod in recognition of a lesson newly learned.
Not Ned Lamont. He started to argue with me. He just didn’t seem to get that in a criminal trial, the starting point is the presumption of innocence. He looked betrayed by the question and started to quibble about whether the presumption of innocence really did require a vote of not guilty in the absence of evidence. The prosecutor and I quickly looked at one another; even the judge seemed startled. Ned Lamont, erstwhile candidate for U.S. Senate, either unable or unwilling to understand the presumption of innocence.
I was troubled by Lamont’s response. So troubled that I rejected him as a juror in a case where my client’s life might depend on his decision. I am hard-pressed to conceive of a reason why I should trust him with stewardship involving my life. If I had to vote this minute for governor of the State of Connecticut, I would not vote for Ned Lamont. He just didn’t get the presumption of innocence.
Reprinted courtesy of the Connecticut Law Tribune.
Thursday, July 8, 2010
Posted by Norm Pattis at 7/08/2010