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.
