By RICHARD MEEHAN With ANDY THIBAULT
The Cool Justice Report
www.cooljustice.blogspot.com
Jan. 19, 2007
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
It's not the Scopes Monkey trial, Robert Blake, O.J. or Michael Jackson, but it will rivet many people.
Scooter Libby -- a major cog in the Bush administration -- faces a jury of his peers in Washington, D.C. Libby is charged with perjury and obstruction of justice.
Vice President Cheney's former chief of staff sits quietly at counsel table. The former D.C. power player, now powerless, watches a team of lawyers begin to present the threads of his defense. Jury selection began this week.
The process is known as voir dire, a French phrase literally translated as to see and to speak. Our Connecticut Constitution guarantees the right to individual voir dire, that is jurors are brought out one at a time and questioned by the lawyers.
In federal courts and most states, jurors are brought out in large groups and questioned by the court. Lawyers submit proposed voir dire questions, in advance, to the court. The court may permit additional questioning of an individual juror based on the response to the court's questioning. Often that is done sidebar, at the bench, or in an anteroom to the court's chambers.
Trial lawyers in Connecticut have jealously guarded the right to individual voir dire against frequent attempts to streamline the trial process. The judicial department has repeatedly tried to move voir dire into a box like the federal model, but our state Constitution trumps these efforts at replacing an important due process right for mere expediency.
Lawyers pride themselves on being students of human nature and view the voir dire as a means to gauge and predict how a juror will respond to the theme of the defense. The limits of such questioning are set by statute and case law, but experienced trial lawyers constantly push the envelope. The goal of voir dire is to determine whether the juror will be fair and impartial or if there is any statutory disability to serve. We are not permitted to pose a hypothetical close to our fact pattern and elicit how the juror will vote or respond. Some trial judges are liberal in their interpretation of the limits of such questioning, while others hold lawyers to a firm line.
Lawyers for each side are allowed a limited number of peremptory challenges or strikes. These can be exercised without explanation, in most instances. In recent years courts have recognized that racial or gender bias cannot be the basis of such challenges and will require a lawyer to vocalize a race or gender neutral reason for the strike if challenged by the opposition. Challenges are exercised immediately at the conclusion of that person's questioning. Lawyers cannot wait until all potential jurors have been questioned. Great care is taken to preserve challenges in the event that Attila the Hun ends up being the last one out of the voir dire room.
If jurors demonstrate obvious bias the court has the discretion to excuse the juror for cause. Artful lawyers, recognizing a juror unsympathetic to their questioning, will try to manipulate the questioning to convince the court to excuse that person. Judges will strive to rehabilitate such jurors and will only excuse for cause if the reasons are compelling.
In the federal system the end result is the same, however, lawyers exercise their challenges at the end of all of the questioning. There, they have the benefit of seeing what the balance of the panel looks like before excusing a particular juror.
In complex state criminal trials jury selection can take weeks. In contrast, most federal juries -- even in the most complex trials -- are selected in a day. In either forum complex cases usually require the lawyers to propose written questions to be put to a larger pool of jurors well in advance of actual jury selection. Courts will work with counsel to review the responses and try to weed out those who would not survive the actual questioning -- that is, those who demonstrate obvious bias.
The advent of TV celebrity trials has exposed us to the use of jury consultants. High budget criminal defendants will employ consultants to help counsel forge voir dire questions and study the responses. Questions sometimes are psychological profiling. In many instances, if finances permit, consultants will arrange mock trials where lawyers can test theories of defense before a panel of "jurors" selected by the consultant. The consultant then acts as a facilitator, leading the group in discussions of key issues while the lawyers watch through a two-way mirror.
Years ago in a capital murder case involving the beating death of a baby, we employed a consultant and conducted a mock trial. One of our several concerns was that the autopsy photos were horrific and we were concerned whether a jury could get beyond the shock value to reach an impartial verdict. Amazingly, the group expected to see such pictures when they heard a synopsis of what the testimony would be and was desensitized to the horror of the photos.
The most bizarre voir dire I had ever heard of was conducted by a New Jersey lawyer, Rudolph "the Lion of Judea" Zalowitz. Yes, that is what he called himself. Rudy Zalowitz was the confidant and counselor to the Reverend David Bubar. Bubar himself was the spiritual advisor to a financial giant who was the principal owner of the Sponge Rubber Products Company of Shelton. Bubar fancied himself a psychic and predicted the fiery destruction of this old Shelton factory. To ensure that his prophecy would come true he then arranged what was believed at the time to be the largest arson case investigated by the FBI. Bubar was charged in both the state and federal courts with a battery of offenses stemming from the fire and kidnapping of the guards. My father was contacted by the "Lion of Judea" to defend Bubar.
The Lion sought to be admitted pro hac vice, a Latin phrase for the temporary admission of an out of area lawyer to practice before the court. We were in front of a crusty curmudgeon of a judge, the late Irving Levine. He would not believe that this character was actually admitted to practice anywhere. On the application for his admission the Lion brought in his framed diplomas to try to convince Judge Levine that he actually was a lawyer!
The Lion fancied himself a phrenologist. Now I had never heard of phrenology before. Apparently it is the "science" of reading bumps on the human head to predict behavior. The Lion wanted to propose that he be allowed to approach each prospective juror and rub their heads as part of the voir dire! Fortunately that never happened, but apparently he had convinced some judge somewhere in the past that he be allowed to do so.
Libby's lawyers are not concerned with skull structure, but whether the debacle of Iraq will play a role in the attitude of prospective jurors. The goal is to allow this to be a trial based on the facts of that case and not a referendum on the Bush administration. Vice President Cheney is expected to testify as a defense witness. I wonder if the prosecution knows any phrenology, but that skull may be a little too thick to get any reading from.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com
Andy Thibault, author of Law & Justice In Everyday Life and a private investigator, is an adjunct lecturer of English and a mentor in the MFA writing program at Western Connecticut State University. Thibault also serves as a consulting editor for the literary journal Connecticut Review. Website, www.andythibault.com and Blog, http://cooljustice.blogspot.com
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