ATTORNEYS FOR ALLEGED TERRORISTS CAN CONDUCT “ATTORNEY VOIR DIRE” AND YET FULL-FLEDGED, AMERICAN CITIZENS ON TRIAL IN MANY OF OUR FEDERAL AND STATE COURTS HAVE JUDGES PROHIBITING ATTORNEY VOIR DIRE - HOW CAN THIS HAPPEN IN AMER
In a jury trial, there is nothing more important than seating a jury with individuals who will work as impartial fact-finders. The right to a trial before an impartial fact-finder is indeed a cornerstone of the American system of justice. The constitutional protection of the right to trial by jury in civil cases is found in the Seventh Amendment to the United States Constitution.
In many court systems - i.e., the state court system of Florida, Georgia, and New York - full and complete attorney voir dire is allowed. Yet, in other court systems in the United States of America - i.e., state courts in South Carolina and most U.S. District Courts across America - “attorney voir dire” is either prohibited or forbidden or unreasonably restricted or limited. For example, in state courts in South Carolina, attorneys are not permitted to ask questions of jurors during the jury selection process. All of the questioning is done by a state court judge. Looking at another example, the handling of voir dire in virtually all U.S. District Courts in America is done by having the federal judge ask the questions and by prohibiting the lawyers from asking questions of prospective jurors except in very limited circumstances.
There are, of course, some federal judges who are exceptions and allow some level of attorney voir dire. However, I am aware of one recent criminal court case in which the defendant, if convicted, would likely spend 15 years of her life in a federal penitentiary. A panel of prospective jurors was brought into the federal courtroom and the federal judge conducted the questioning of these prospective jurors – in total – in approximately 50 minutes, and then, the federal judge allowed “each side” (meaning the prosecutor and the defense lawyer) a total of “10 minutes per side.” This is an outrage! It is a travesty of justice! It is unthinkable that such a procedure takes place daily in American courtrooms.
Part of the problem is that most of the judges conducting those types of “voir dire” do so by asking questions that elicit virtually nothing about the real biases and attitudes of certain jurors. The law mandates “impartial” jurors. How can you possibly know whether a person is impartial without learning the details of that person’s background, philosophies, attitudes, and more? The answer is – you can’t! Further, everybody in the system knows you can’t! It takes time – sometimes many hours and sometimes many days (and in the rare exception, sometimes many weeks) – to make these determinations. Other judges – in jurisdictions that allow attorney voir dire – permit attorney voir dire but place substantial restrictions on it, such as limiting each side to one hour or two hours, etc. And although it is true that there have been some instances where lawyers during “attorney voir dire” have bantered on and on about irrelevant things and have done what some of these judges refer to as “abusing the right to attorney voir dire” – that is no excuse to paint a broad brush across the spectrum of voir dire and prohibit or restrict or limit attorney voir dire when it is so important and essential and necessary. Judges want to move along their dockets, and they don’t want to spend time on voir dire in many instances.
So, here is an important item to note: Under our federal system of justice, when an accused terrorist is being tried for alleged acts of terrorism and when there is a jury trial with the case to be determined by a jury under our federal tribunal rules, attorney voir dire is permitted and allowed for the lawyers representing alleged terrorists (who in virtually all cases are citizens of countries other than the U.S.A.). In accordance with the “Manual for Military Commissions” (10 U.S. Code 47A), the military judge may permit the parties to conduct oral voir dire. The manual specifically notes that, “…Counsel should not purposely use voir dire to present factual matter which will not be admissible or to argue the case.” This, of course, clearly indicates counsel for the parties can indeed utilize voir dire to present certain factual matter which “will be admissible.” This is important because our United States Supreme Court in 1989 confirmed in the case of Gomez v. United States that “…Voir dire represents jurors’ first introduction to the substantive factual and legal issues in a case.”
When state court and federal court judges forbid or substantially restrict attorney-conducted voir dire, it diminishes the likelihood of there being a genuinely fair and impartial jury to try the case! It is simply impossible – yes…not unlikely…but impossible – to seat a fair and impartial group of jurors without conducting an in-depth questioning regarding each juror’s biases, attitudes, philosophies, and more. It takes time and it takes hard work, but it is necessary.
In a recent Florida Supreme Court case (Matarranz v. State of Florida), Justice Jorge Labarga noted that it has long been the law in Florida that when a prospective juror “is sensible of any bias or prejudice, he is excluded by the law.” A cursory or superficial or relatively brief voir dire by anyone – whether a judge or a lawyer – will be woefully insufficient and inadequate to make such a determination.
There are some things that just take time and effort and thought process and hard work. One of those things happens to be voir dire in a jury trial. Cutting out attorney voir dire is simply taking a shortcut. And were the judge himself or herself on trial in a criminal case, or if that judge had a family member in a trial in a civil or criminal case, you can bet your bottom dollar that that judge would be screaming out for full and complete and adequate and necessary voir dire, including in-depth attorney voir dire.
Judges control voir dire. Judges have the ability to allow appropriate and adequate voir dire or to cut it off and try to take shortcuts – usually done “to save time.” The courts have on many occasions even had to address issues related to those judges who try to rush through voir dire, with one court holding, “The purpose of voir dire is to obtain a fair and impartial jury to try the issues and the cause – time restriction or limits on the number of questions can result in the loss of this fundamental right. They do not flex with the circumstances such as when a response to one question evokes follow-up questions.” Williams v. State of Florida, 424 So.2d 148 (Fla. 5th DCA 1982). Voir dire is so important! Attorney voir dire is so necessary! Rushing through any aspect of a trial in order to save time or take shortcuts is nothing short of horrific!
Let us all work together in the state and federal court system to take every reasonable step – no matter how long it takes, or no matter how difficult the effort, or no matter what energy needs to be utilized – to seat fair and impartial jurors (“knowing” as best as we can that we have done the best job possible to seat such jurors).