Death Penalty Voir Dire For My Birthday

Ok, I have to blog about this TODAY before I forget all the important details, but here’s the thing:  I’m not really sure how specific I can be because some of what went down today in court is highly personal to the individual involved.  That being said, it warrants discussion if only to show just how the workings of the judicial system are ever-changing and never cease to amaze even the most seasoned lawyers.

As part of my prosecution clinic I am assigned to two attorneys in two different divisions.  One of the attorneys, we’ll call her “B” is working on a capital murder case outside of her usual jurisdiction and trying it with their local attorneys.  I ran into Ms. B yesterday on one of her infrequent visits back at the home office.  She invited me to go with her to court and watch as she worked on picking a jury (voir dire) for the case.  Because I am away from home for my birthday today I thought, wow…this experience will most certainly memorialize this birthday (my LAST one as a law student), so of course I accepted the offer and off I went to court.

Background:

The Defendant is up for the death penalty, so voir dire is an extremely detailed, long and tedious process, which, is as it should be if you’re going to possibly take someone’s life.   What I didn’t know and found out once I got there is that death penalty voir dire is one-on-one.  That means that both the State and the Defense talk to and question the potential jurors one at a time.  They call for a large pool of people, everyone fills out a long questionnaire that both sides compile to gather some background information on the person.  Both sides use this information to ask questions during voir dire or maybe even exclude a potential juror based on their answers.

The questionnaire can ask almost anything meant to uncover hidden biases that may prejudice the person for or against either side.  In death penalty cases, of course, both sides want to know the potential juror’s opinion on the death penalty.  They will often ask about their opinion of expert witnesses, law enforcement, lawyers etc.  Also, the parties want to know if the potential juror has any criminal history either as a defendant or as a victim of crime.   Medications, mental issues, connection to political organizations or religion…all of this tells both sides more about the potential juror and gives them a sense of whether they’d be good for the defense or good for the prosecution.   So in death penalty cases, all of these issues are open for discussion to both the state and defense until each side is satisfied with the information they’ve gathered.  The person comes into the courtroom and sits alone in the jury box and first the prosecution asks its questions and then the defense.  It’s very conversational, but everything is spoken in generalities because at this point no hard facts on the case at issue can be disclosed.  The Defendant is present in court.

Today:

I sat in on the voir dire of one potential juror today; a woman in her mid 60’s.  We’ll call her “G.”  I reviewed her questionnaire and noticed that there wasn’t much detail on several pages.  Things that caught my eye:  1) She felt strongly about personal responsibility, 2) She felt strongly that a person’s background did not excuse their commission of crime, 3) She admitted to having been sexually abused by her father as a child, 4) She’d been married five times, and 5) She was worried about a long trial because she is the care giver for her morbidly obese husband.   Ok.

Everything went fine through the Prosecution voir dire.  Ms. G seemed to follow along, seemed quite agreeable and appeared to be a generally good fit for the Prosecution.  Pass to the Defense…here’s where it got weird.

Defense wants to know this and that…Ms. G is forthcoming.  Defense attorney is smiling and engaging; so is  Ms. G.  Defense attorney attempts to switch gears and address some specifics in the questionnaire.  He goes to pick up his copy and Ms. G says [Paraphrasing] “I have something to tell you.  I don’t know whether it’s important and nobody ever asked, but my son was murdered by my step-son.”

Before Ms. G said this, there were four prosecutors sitting at the table in front of me, all of them slightly reclining in their chairs–the one Defense attorney still at the table and the Defendant were also sitting similarly.  Once Ms. G dropped this bomb, all five attorneys simultaneously sat upright and leaned forward in their chairs.  I do believe the questioning Defense attorney had to pick up his jaw from the floor.  We were all momentarily stunned–there was none of this on the questionnaire which did ask about being a victim of crime (either self or family member).

Obviously this had to be explored further.  Mr. Defense attorney first offered his condolences to Ms. G.  She said she was fine and had “gotten over it.”  Here’s how it went from there:

Defense:  How old were you when this happened?

Ms. G:  21

Defense:  How old was your son?

Ms. G:  9

Immediately I know that everyone in the room is doing the math because I AM doing the math.  Twelve?!?!  She had this kid, who was ultimately shot to death by his 15 year-old step brother, when she was twelve?!?  Then one of the facts in the questionnaire that caught my eye came back to me.  The pieces fell into place.  I knew.  I think all of us: me, the six attorneys, the judge all knew.  The likely truth was too hard to comprehend.

The questioning ended pretty soon after this exchange.  Not that I don’t think there were more questions to be asked, just that all of us were reeling from what had just been disclosed and the implications of what hadn’t.  The Defense attorney attempted to wrap up and asked Ms. G if she had any questions.  She did.  She pointed and asked, “Is that the Defendant?”  We all turned and looked at him and the Defense attorney replied, “Yes, yes it is.”  Ms. G got a big smile on her face, waved at him and said, “Oh, HI!!!”

Uncomfortable silence.

Needless to say, once Ms. G was cleared of the courtroom the discussions began.  Neither side is wild about having her on the jury because she’s all over the place, but they aren’t  ready to exclude her because there is still more of the jury panel that they have yet to meet.  There may be someone down the line that is a worse option for either side in which case, they’ll take Ms. G instead.

One thing everyone did agree upon was that THIS voir dire was one of the strangest ones any of them had experienced.  EVER.  In a room with collectively over 75 years of trial experience present, that is something else.  Surreal was the word used more than once.  We were all left scratching our heads.

I for one, had one of the best, most bizarre and unforgettable birthdays ever.