Author Topic: Jury Selection Procedures  (Read 8524 times)

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Offline TalkLeft

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Jury Selection Procedures
« on: June 11, 2013, 03:11:44 AM »
There is a lot of conflicting information about how the jury is being selected. I havenít found any court order describing the process. Florida's Jury Management Manual is here.

What we know: 500 jurors have been summoned.
There will be six final jurors and some number of alternates.
100 jurors are to report each day. When they get to court, they fill out questionnaires.

It appears that the jurors with hardship or permissible excuses under Florida law (over 70, can't read or understand English, pregnant, etc) and any who were statutorily ineligible (felony conviction, pending felony charges, not a citizen, etc.) were allowed to submit that information before today, in writing or electronically, and another judge evaluated them and excused them (or refused to excuse them.) So maybe there was no need to start with the hardship/ineligibility cases, although out of 500 jurors, one would think some didn't bother to ask to be excused ahead of time, and didn't mention any hardship until they got to court today.

As to Day 1 (100 jurors:) They filled out questionnaires. The judge distributed them to the parties to review. She told the lawyers to separate them by the answer to Question 4. (The first several questions on questionnaires, including Florida approved ones, are usually biographical: name, age, whether they are a resident of the state of Florida and the county where the trial is being held, etc.) From watching prosecutor BDLR work his stack, separating the questionnaires into two stacks (based on Question 4) it seemed to me he was moving single pieces of paper into his two separate piles, which if correct, means these questionnaires are only 1 page. That in itself is unusual for a high-profile trial. I've never seen one under 5 pages and most are longer. It appears to me the judge rejected both sides proposed juror questionnaires and just added a few questions from them to the court's standard 1 page questionnaire submitted in routine cases. The camera stayed on BDLR for several minutes during the process, and it seemed like he was putting only a few, maybe 1 out of 4 or 5, into his second pile. The same seemed to be true for the defense separation, although the camera didn't stay on them from a full-front angle long enough to really tell. 

The judge then told the state and defense lawyers to go out in the hall and agree on those potential jurors they thought should be questioned.

Possible meaning: Question 4 dealt not with biographical information, but with whether they had been exposed to media coverage of the case, and whether they thought they could be fair. My sense (and this is just an impression) is that 3 out of 4 jurors said they had made up their mind and had a fixed opinion. (Aside: Great way to get out of serving.) They will be likely be excused right away.

As to the 25% or so who said either said they had no exposure or had some exposure but thought they could still be fair, that seems to me to be the group  the judge told the lawyers to try and agree  which ones needed to be questioned. (I have no idea why they wouldn't want to question all of them unless there were some who said they were on another planet, out of the country, in the hospital, or something similar the past year. Or that they are illiterate and don't own a TV or radio.)

The judge held a lot of sidebars. It seems to me that the sidebars followed the individual questioning of the jurors (those that the parties agreed should be questioned on publicity based on their answer to Question 4) and they were for the purpose of the lawyers either objecting to the juror for cause based on their answers to the publicity questions, or saying they had no objection to them moving on to the next round of questioning. The Judge then ruled -- either excused for cause or not. She didn't want the jurors to know which side was excusing which jurors, so she did this at sidebar and didn't announce the results.  This also fits with the judge asking GZ at the end of the day whether he agreed with his lawyers choices. His lawyers didn't make any choices other than to agree with Bernie who should be questioned -- what choices could she be referring to other than their expression to her at sidebar which jurors they wanted excused for cause based on their publicity answers.

Four jurors were questioned today. The judge said in open court that three of the four would return Tuesday along with 17 more from the initial group who werenít questioned today. There are reports at least one (B-30 has been mentioned) was excused. I suspect the juror was notified before the end of the day s/he doesnít have to return tomorrow.

The judge said the goal is to have 21 jurors remaining. Does she mean 21 after the first round before she begins the second round, or 21  after the jurors' second round of questioning? I have no idea why she picked 21. If only 21 were passed for cause at the end of all questioning, there wouldn't be enough left for a six person jury (let alone 4 alternates) if each side exercised all their peremptory challenges. Unless the number of peremptory challenges for each side is only 6. If each side got only 6 peremptory challenges, and there were 21 potential jurors left in the pool, and both sides exercised all their challenges, that would remove 12 from the group of 21, leaving 9, which would be enough for a jury of six with three alternates. The numbers donít add up. If there are 6 jurors, 4 alternates and each side gets 10 peremptory challenges, they need at least 30 passed for cause before peremptory challenges begin. Also, fewer than 10 challenges does not sound adequate for such a high-profile case.

Media reports vary:   The Orlando Sentinel says there will be 6 jurors and 4 alternates.

So does the LA Times:

Quote
Potential jurors will fill out questionnaires and will be brought in to be questioned in the presence of all parties who can seek to strike some of them. Once there is a pool of about 21, they will be questioned by the defense and prosecution as part of the usual voir dire process that allows each side to try to shape the jury to its benefit. Each side has 10 peremptory challenges. The jury will be composed of six people. Four alternates will also be selected.

NBC is reporting says the prosecution and defense each get six peremptory challenges.

This news source says 100 will report each day Monday - Friday (total 500) and there will be 6 jurors and 2 alternates chosen. It also says each side gets 10 peremptory challenges.

This is a most unusual way of picking the jury in my view.

First, the lawyers should not have had to make decisions on who to question without being given time in private to consult with each other and their jury expert. The judge denied O'Mara's request for a recess to do this, and told them to do it while sitting in the courtroom. (She ordered their microphones turned off to give them privacy -- of course the media was allowed to stay in the courtroom and watch them, as was anyone in America who was watching the live-streaming.)

In my experience, when juror questionnaires are used in other than routine cases, it goes something like this: The jurors come to court on a date specified a few weeks before trial is scheduled to begin. They fill out the questionnaires. They are told to return in 2 or 3 weeks. During that time, the parties and their jury consultants review the questionnaires and do their due diligence (background checks.). They may submit the obvious challenges for cause to the judge during the interval (such as jurors who respond, "He should be fried and I'll needle him myself" or "I have stage four terminal cancer and am in Hospice" or "I'm deaf" or "I'm moving to France next week.") As to those the parties agree should be excused for such cause, the judge can excuse them ahead of time. If there is disagreement among the parties, or the judge doesn't agree with them,  an in camera hearing is held and the parties argue, and the judge rules. Those that the judge doesn't excuse  show up with the rest of the pool of summoned jurors to be questioned on the scheduled day.

The way Judge Nelson is proceeding is trial by ambush, in my view. There's no time for the lawyers on either side to do due diligence on the jurors before questioning them so they can confront them with any lies they discovered during their background checks.  If the defendant is convicted, and they appeal claiming they learned new evidence after the trial to show a juror lied about their background or something else of import, the appeals court usually says, tough, you didn't do your due diligence, you could have found this out earlier.  It's as if she denied their request for juror questionnaires and declared this jury will be chosen the same way as a D.U.I. or shoplifting case. Which may be exactly what she did, which is why the juror questionnaires are only one page. 

In sum, I'm still confused as to how this jury is being selected, and not finding answers.  I haven't even found a written ruling on the juror questionnaire issue. The judge did not use the questionnaires the parties submitted but her own, to which she may have added some of their questions. Is that a denial of the defense motion? Did the defense object? I don't understand how a state that approves the disclosure and publication of prejudicial discovery prior to trial under public records laws can not publish something so un-prejudicial as the order specifying how the jury will be selected.

I hope the defense has an intern or law clerk in the courtroom whose job is only to keep  running journals of potential errors for appeal as they occur. it seems like   there's going to be a lot in this trial and it will be a full-time job recording them as they occur so they don't get forgotten. Just today: the denial of a motion for continuance based on the defense receiving an additional 1,000 pages of Martin's phone records four days ago; Refusal to continue the trial based on not having yet been able to depose Crump, whose deposition might lead to the discovery of additional evidence; Failing to finish the Frye hearing before picking the jury,which leaves the defense with no idea whether the experts will be allowed to testify, something that might affect their decisions as to whether to pick or reject various jurors; Denying the defense sufficient time in private to consult with each other, their expert and their client about the juror questionnaires; Limiting the first round only to publicity issues, preventing the defense from spontaneously exploring other areas raised in their answers; Asking GZ to affirm his lawyers' decisions when he wasn't even at the bench to hear what they said and  the judge did not provide the lawyers private time to consult with him before going up to the bench. 

Feel free to comment on your understanding of how this process works or update with new information. I have far more questions than answers.
« Last Edit: June 11, 2013, 11:56:54 AM by TalkLeft »

Offline cboldt

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Re: Jury Selection Procedures
« Reply #1 on: June 11, 2013, 04:16:09 AM »
Excellent comprehensive summary, thank you.

Edit: Working Link to Jury Managers' Manual 290kB pdf file

I'm pretty sure the questionnaires are more than one or two sheets.  I heard some reference, IIRC, to an "answer to question 21."  It may have been that sorting against Q4 was done with single sheets, but each prospective juror's response ran however many pages.

I'm confident we'll see the questionnaire after it's purpose has been served.  Florida's sunshine law has been flouted by the state and the court all over the place, in this case.  I would assume that it does so in other cases too.  But the possibility of harm in showing the questionnaire is limited to the time before all prospective jurors complete one.

The court did not provide a writing surface (like a clipboard), and one prospect described having no book (which could serve as a writing surface) so she had to use her knee - explaining the difficult to read responses.

Maybe that magic number of 21 represents the number of seats available, and the winnowing will be done with more than group of 21 (or less).  IOW, individual questioning out of earshot of all other jurors on at least media exposure, until 21 are found to pass that hurdle, then after 21 are over the hurdle, bring that bunch in and winnow for other reasons.  Maybe only 5 emerge the first time this is done.  So, go back to the pool and build another group, using media exposure as the first hurdle.  Pure speculation on my part.

This is not the only part of the process that has been highly scripted by Nelson.  I don't think there have been written orders.  O'Mara and West seem completely surprised as each detail is revealed.  Obviously, there is some behind the scenes coordination by the court, as a different judge did preliminary disqualification and excusing, the clerk called for 500 jurors, a certain number were summoned for Monday, and so on.  I don't know how much of that coordination is done by written correspondence.  Public under sunshine, just not part of the case file.  Maybe the court does like the SAO, avoid putting case names in e-mails so as to stifle public view.
« Last Edit: June 11, 2013, 04:18:33 AM by cboldt »

Offline cboldt

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Re: Jury Selection Procedures
« Reply #2 on: June 11, 2013, 04:25:23 AM »
There were no written motions on preparation of the written questionnaire.  The judge orally invited each side to present questions to the court.  I think defense asked for a conference with the court to discuss, and was denied.  The written questionnaire, it appears, is solely the province of the court, and the parties have no right to input or object.  From snippets of dialog yesterday, I think the state saw the questionnaire before 9 am yesterday morning, and had suggested some modifications.  But, Nelson indicated previously (May 28, I think) that the state and defense would learn what the questionnaires contained on Monday, June 10.  In short, she invited input, denied an opportunity to discuss, and announced that the output would first be available on June 10.

Offline RickyJim

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Re: Jury Selection Procedures
« Reply #3 on: June 11, 2013, 08:10:38 AM »
I didn't listen to the jury questioning yesterday and I find what I've heard so far this morning so irritating that I will not listen again to the jury selection.  The idea of having juries is to make a random sample of reasonable people to get a reasonable verdict.  This obsession on getting people who have been exposed as little as possible to news on the case makes the sample highly non random.  It would be much quicker, cheaper to only allow the judge to question the jurors and only dismiss people who know anybody involved, fear the consequences to themselves if they decide a certain way, have a hardship, have a very detailed knowledge of the evidence, fail an electronic background check (felons), or come right out and say they have a very strong opinion as to guilt or innocence.  It should take 1 day to select 6 people from a pool of 25 and at most 2 days to pick 12 from 50.  If it appears that most of the members of the pool would fear to vote the way the evidence leads, get a panel of retired judges.

Offline annoyedbeyond

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Re: Jury Selection Procedures
« Reply #4 on: June 11, 2013, 08:30:14 AM »
Ricky raises a good point about the selection of the jury. I understand you don't want a jury to be made up of people who've already made up their minds, but the system now does seem to penalize intelligent, involved, educated people.

Offline RickyJim

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Re: Jury Selection Procedures
« Reply #5 on: June 11, 2013, 03:32:05 PM »
So what is the jury selection algorithm?  Is it something like?:
  • Excuse all who answer certain questions on the questionnaire a certain way.
  • Have the lawyers question all the remaining on their knowledge of the case and excuse those for which a lawyer gives a good reason to challenge.  (Going on now.)
  • Next question all the remaining on their fears what might happen to them if they acquit or convict and excuse the very fearful.
  • Take peremptory challenges.
  • Randomly choose 10 from the survivors to be jurors and alternates.

Offline TalkLeft

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Re: Jury Selection Procedures
« Reply #6 on: June 11, 2013, 03:52:49 PM »
The point of round 2 questioning is not about whether they are fearful.  It's the actual voir dire on all matters that takes place in every case: The jurors attitudes on a number of topics, such as whether they have friends or relatives in law enforcement, whether they would give more weight to law enforcement, their thoughts on guns and stand your ground, their thoughts on self-defense, whether they or ones close to them have ever been a victim of a crime. If so, how do they think the police/prosecutor handled it. Have they ever been falsely accused? How would they decide who's telling the truth if testimony among witnesses is contradictory. That's just a fraction of it.

Otherwise, yes:

The hardships have already been dealt with.
The persons who answered they could not be fair or who only raised hardship after getting to court yesterday  on their questionaires (around 40 of yesterday's 100) are gone.
The remaining number of that group is being questioned on pre-trial publicity and whether they can be fair (all said on their questionnaire they could be fair, that's why BDLR and O'Mara asked them to be called for questioning on the issue)
After each juror is questioned, they approach the bench and make any motions to strike or agree the juror passes the "fairness" round.
When enough jurors have passed the first round  to move on to round two,  the real voir dire gets underway.
Challenges for cause can be made at any time, even during round 2.
When enough jurors have passed round two, the peremptories begin.
Neither side has to use all their peremptories.

I still don't know if she is doing Round 2 in stages, or planning on waiting until they have enough who have passed round 1 to account for the 6 jurors, 4 alternates and the combined number of peremptories.

Offline cboldt

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Re: Jury Selection Procedures
« Reply #7 on: June 11, 2013, 04:16:51 PM »
I still don't know if she is doing Round 2 in stages, or planning on waiting until they have enough who have passed round 1 to account for the 6 jurors, 4 alternates and the combined number of peremptories.

If round 2 includes challenges for cause, and I assume it does because it will cover ground other than pretrial publicity and hardship, then the court can't predict exactly how big the round 2 pool has to be, to insure it is big enough to yield 10 acceptable jurors.  Not to say the court can't make a good guess at how big the pool has to be; just saying that the winnowing may continue at both levels until selection is complete.

Offline TalkLeft

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Re: Jury Selection Procedures
« Reply #8 on: June 11, 2013, 07:41:57 PM »
LA Times is reporting

Quote
Individual prepublicity voir dire will be conducted until they get a pool of 30 people not stricken for cause. Then they will begin the traditional voire dire with those 30.
 

Offline TalkLeft

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Re: Jury Selection Procedures
« Reply #9 on: June 11, 2013, 08:08:05 PM »
Here is Florida's approved jury questionaire to be used in all cases (although Judge can customize it.) It's the latest version, from the state's rules of criminal procedure (May 2013 edition.)

Here are a sample of questionnaires in high profile cases -- they run from about 15 pages to 50 pages or more. Included: Michael Jackson, Kobe Bryant, Antoine Rezko, Conrad Black, Richard Schrushy,Warren Jeffs, Cyril Wecht (medical examiner), Phil Spector, Jose Padilla, Zacarias Moussaoui and more.

The Judge in the Casey Anthony trial rejected defense requests for a supplemental questionnaire.

Here's a 1994 article from the New York Times interviewing Robert Hirschhorn on the length of high profile jury questionnaires.

Also, as I think NMNM posted,

Rule 3.281. List of Prospective Jurors

Quote
Upon request, any party shall be furnished by the clerk of the court with a list containing names and addresses of prospective jurors summoned to try the case together with copies of all jury questionnaires returned by the prospective jurors.

So I assume the defense had the 500 summoned jurors names and addresses earlier than yesterday and had some due diligence done.

Because the proceedings are being live streamed, I think it's likely that Hirschhorn associates are at an another location watching and sending real time info on the jurors and suggesting questions to be asked to O'Mara, West and Hirschhorn.

Offline RickyJim

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Re: Jury Selection Procedures
« Reply #10 on: June 11, 2013, 08:28:42 PM »
Have there been any scandals where these monster questionnaires ended up in the hands of marketers?  They are an invasion of privacy, have next to nothing to do with one's ability to analyze and weight evidence and are one of the reasons so many people who would be excellent jurors throw their summonses in the garbage.  And are found nowhere else on the planet but the USA.  Sorry.
« Last Edit: June 11, 2013, 08:35:41 PM by RickyJim »

Offline nomatter_nevermind

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Re: Jury Selection Procedures
« Reply #11 on: June 12, 2013, 12:16:53 AM »
Have there been any scandals where these monster questionnaires ended up in the hands of marketers?  They are an invasion of privacy

I think I heard someone, maybe a WFTV 9 talking head, say the questionnaires would be released after the jury was seated.

I guess they are public records, like so much else in Florida.

Offline TalkLeft

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Re: Jury Selection Procedures
« Reply #12 on: June 12, 2013, 12:25:55 AM »
I think the network was referring to the blank questionnaire. I doubt they release the completed ones for privacy issues.

In most cases I'm familiar with where there is a supplemental jury questionnaire, the lawyers are instructed to return them or provide a statement they have been destroyed at the end of the case (which would be end of appeal in event of conviction and appeal on a jury issue.)

So I think what the court releases is the questionnaire that was submitted to the potential jurors, not the ones they filled out and turned in.  There would be too much material to redact for it to be otherwise (names, addresses, place of employment, etc.)

Offline nomatter_nevermind

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Re: Jury Selection Procedures
« Reply #13 on: June 12, 2013, 12:36:40 AM »
I think the network was referring to the blank questionnaire.

No, because the context was of getting some idea of why individual candidates were dismissed.

ETA: Good point, that really private information can be redacted, maybe even the names.
« Last Edit: June 12, 2013, 12:38:57 AM by nomatter_nevermind »

Offline RickyJim

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Re: Jury Selection Procedures
« Reply #14 on: June 13, 2013, 10:01:01 AM »
Am I the only one online or in the media who is infuriated by these proceedings?  When they get to the real voir dire, I might not be able to bear even reading the live updates.  All of the vetting by hardship could have been done in private.  I am outraged that a lady had to explain in public that her brother died of brain cancer a few years ago and she is taking care of his teenage sons.  What is the public's right to know?  All electronically available information could have been used for filtering ahead of time; even what inappropriate things people put out on Facebook, providing they used their real names.  The future may hold in store, a demand that the NSA give out all information they have on prospective jurors.   :(   Besides patent and fraud cases which are too technical for the layman, high profile cases should also be handled by a blue ribbon panel, as I mentioned before retired judges are appropriate.  The way things are structured to handle sensational court cases, I think there is an inverse relationship between being able to evaluate evidence properly and desire to be on the jury.

 

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