January 2004
Voir Dire
by Greg Lawless
I was pleasantly surprised to receive the jury summons. Despite the assurance that selection is random, I felt the jury computer somehow sensed that I would make a fine juror. Pleased by the compliment, and knowing that I could decline because of my profession, I opened the envelope and was shocked to learn, lawyers are no longer exempt!
"There's something seriously wrong with our justice system," I complained to the wind, "when it requires lawyers to actually have to serve as jurors!"
Despite my well-justified outrage, it was clear: I had to do jury service.
I reported to the jury room and quickly learned that five other lawyers and a judge had been pressed into service. They were easy to spot: each one started the conversation with the clerk, "there's been a mistake here." After we had become acquainted, we wondered if our status as lawyers would be a hindrance to actually sitting on a jury. We soon learned that "a hindrance" was an understatement. Impenetrable, insurmountable tangle of poisoned barbed wire would have been a better description.
At first we made light of the number of times we were "recycled" back to the jury room, but as the week progressed the rejections started getting to us. It wouldn't be so bad if you didn't have to suffer through voir dire before being rejected, but it didn't work that way. Not only did you have to sit through voir dire, but the questions seemed virtually identical from one case to the next.
Start of the Rebellion
"John," a retired corporate lawyer, was the first one to snap. During John's fifth voir dire of the week, the prosecutor was, once again, asking John if he would follow the laws of the State of Washington (they always ask you that, apparently worried that you might have brought your own set of laws and intended using those instead). John, the sorry victim of repeated rejection, unfortunately picked that question to lose it. It was the proverbial straw. The dialog went like this:
Prosecutor: "Now juror number 236, the judge will instruct you to follow the law of the State of Washington. Will you do that?"
John: "I'd rather not. I'd prefer to use the laws of Portugal."
Prosecutor (some what flustered): "Why is that?"
John: "I find the Portuguese understand them better."
Prosecutor: "Are you Portuguese?"
John: "No."
Prosecutor: "I see."
John was positively gleeful over the rejection that followed. "At least this time it wasn't because I'm a lawyer. It was because I am a jerk."
In our emotionally fragile states, John's point actually made perfect sense to us. We each took up the unspoken challenge, thus giving rise to some of the most unique voir dire sessions recorded in Seattle Municipal Court.
Intoxication
The majority of Seattle Municipal Court cases are DUIs. Expect to be asked about your drinking habits, your spouse's drinking habits, your friends' drinking habits, and your dog's drinking habits. "Bill" handled the issue masterfully:
Prosecutor: "Juror 244, do you occasionally have something to drink?"
Bill: "Yes sir, I do."
Prosecutor: "And how do you know when you've had enough to drink?"
Bill: "I see the pink monkeys."
Prosecutor: "Juror 244, when was the last time you were intoxicated?
Bill: "May I ask a question?"
Prosecutor: "Yes."
Bill: "Are there pink monkeys in the jury box?"
Prosecutor: "No."
Bill: "The last time was today."
The Role of the Police
Another frequent theme in voir dire is the attempt by defense counsel to get jurors to agree they won't give more weight to a police officer's testimony than to a defendant's (a previously convicted felon addicted to heroin, manacled to his chair, and wearing a Western State Hospital sweatshirt with a bull's-eye and the words "Shoot to Kill" on it). "Amy" was frankly brilliant dealing with the situation:
Defense: "Juror 217, will you give more credibility to a police officer than to my client, the gentleman sitting next to me poking himself in the eye?"
Amy: "Of course not. Who do you think I am? Some kind of moron?"
Defense: "No, not at all. It's just that a lot of people might favor a police officer."
Amy: "And you thought I was one of those pinheads, didn't you? Officer, put me in handcuffs before I hurt someone!"
Defense: "I'm not trying to insult you. It makes perfect sense to trust a police officer more. Everyone does, especially compared to someone like my client."
Amy: "I see your point. Maybe you're right. I will believe the police officer more."
Presumed Innocent
A voir dire can't go by without a dialog on how wonderful it is to be presumed innocent, and that it is harder to prove "beyond a reasonable doubt" than it is to get a teenager to stop saying "um." "Dan" expertly handled those inquiries:
Defense: "Juror 292, you're an attorney, aren't you?"
Dan: "I am a patent lawyer."
Defense: "Could you explain, then, what is meant by the presumption of innocence?"
Dan: "Patent lawyers don't really deal with criminal law very much."
Defense: "In your own words, then."
Dan: "OK. As I understand it, the defendant is guilty until proven innocent beyond a reasonable doubt."
Defense: "You've got it backwards. They're innocent until proven guilty beyond a reasonable doubt."
Dan: "No way."
Defense: "That is the law."
Dan: "You wish."
Defense: "Judge, will you instruct the juror on the law?"
Court: "Counsel, jury instructions are given after the closing of the case, not during voir dire"
Dan: "See, I told you."
Do You Know Any of the Parties?
One of my favorite questions — always asked — was whether we had been influenced by pretrial publicity. For a misdemeanor? Someday, I hope, for the benefit of the poor judges who have to ask that question, a juror will acknowledge: "I've been following this driving-while-license-suspended case pretty closely on CNN and have some pretty strong opinions about it." It didn't happen during our voir dire, but "Andy" came close.
Court: "If anyone knows any of the parties, attorneys, or court personnel, please raise your hand. Juror number 204."
Andy: "Your Honor, we've never met, but for years now I have been stalking your bailiff."
Court: "That's disgusting. I don't know what to say. Do you feel this will affect your abilities as a juror?"
Andy: "No, I am actually looking forward to serving, especially if we are sequestered."
Conclusion
Sometimes it takes the bold actions of a few to pave the way for the many. We, the Muni Court 6, have done just that. We have set in motion the means for jury duty exemptions for lawyers not only to return, but to become mandatory. After the dust has settled, after the bar complaints have been adjudicated, after the contempt sanctions have been served, we know that our brothers and sisters in the bar will look at us and say just two words, "Garsh, thanks."
Greg Lawless practices in Seattle's Ballard neighborhood and is a past Bar News contributor. He has changed the names above to protect both the guilty and the innocent. He has also let literary license run amuck.
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