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Friday, April 10, 2009

Courts - More on: Take a look at juror questionnaire in NY's Brooke Astor's son's trial

Updating this April 5th ILB entry, Daniel Wise has a report today in the New York Law Journal. Some quotes:

Jury selection in the trial of Brooke Astor's son and a lawyer has been multi-tiered, meticulous and longer-lasting than expected.

When jury selection started on March 30, Acting Supreme Court Justice A. Kirke Bartley in Manhattan laid out a schedule that projected opening statements in three weeks. Now that goal has been pushed back at least a week.

On Tuesday, Bartley urged the potential jurors not to blame the parties for the delay.

He explained that a 10-page questionnaire (pdf) he had prepared with input from the defense and prosecution for prospective jurors required lengthy follow-ups.

"I am the author of my own misery," he said.

But the judge told the potential jurors, "We have to get it right. There isn't any margin for error, and we can't truncate or shorten it." * * *

So far, 1,200 prospective jurors have cycled through Bartley's courtroom on the 15th floor of 100 Centre St. in the effort to find 12 jurors and six alternates.

At the outset, Bartley laid out a three-step process.

First, he called prospective jurors in batches of 100 and asked if they could serve for three months. Those who indicated they could were asked to fill out the questionnaire.

Among the areas explored through 43 questions and multiple sub-questions are: the panelists' attitudes toward the rich; their experiences with and knowledge of Alzheimer's; whether they have a will or have inherited any property; and the largest contribution they have made to a cultural organization. * * *

Potential jurors who indicated they could not sit for three months initially were questioned individually in the judge's robing room. But after two days, with about 40 people having filled out the questionnaire, the judge abandoned that practice.

In the second phase of jury selection now under way, some of those whose answers raised a possibility of bias are being questioned individually by the judge in his robing room in the presence of the defendants and their attorneys and prosecutors, but not other potential jurors.

Bartley had hoped that 100 potential jurors would survive the first two levels of screening. As of Wednesday afternoon, with the court's business concluded for the week, he had 101.

After the judge interviews an additional 22 people next week, the attorneys will have an opportunity to interview potential jurors in open court. The judge can excuse for cause those who show bias. In addition, the defense and prosecution each will have 15 peremptory challenges. * * *

Several veteran defense lawyers said the use of a questionnaire and painstaking individual questioning of potential jurors is essential to getting a fair trial, especially in light of the enormous amount of pretrial publicity. * * *

In cases like that of Marshall and Morrissey, which raise complex issues and are likely to be lengthy, it may be difficult to get the "best suited jurors," said Benjamin Brafman, who has represented hip-hop mogul Sean "P. Diddy" Combs and other celebrities.

Brafman said that because many potential jurors may be excused because of work-related responsibilities, "you often end up trying complicated fraud cases before people employed in ordinary jobs that do not expose them to sophisticated decisions."

Gerald B. Lefcourt, a defense attorney whose most recent high-profile case resulted in an acquittal on money-laundering charges for rap mogul Irv "Gotti" Lorenzo, called jury questionnaires "incredibly valuable" in ferreting out potential juror bias.

"It is much easier for panelists to answer tough questions in private rather than in an open courtroom," he said. When questioned in open court, Lefcourt said, jurors "adopt each others' answers rather than expressing their own views."

Gerald Shargel, who has handled many high-publicity cases, including those against deceased Gambino crime boss John Gotti, said that judges have permitted the use of questionnaires in about 25 cases he has handled involving high-profile defendants or sensitive issues.

"You can never gather the same amount of information from an oral voir dire that you can get from a questionnaire," he said.

Judd Burstein, who has represented a number of athletes and entertainers in criminal and civil cases, said the judge cannot shorten the voir dire process by allowing attorneys to address sensitive questions to the panel as a whole, followed by a request that they raise their hands if they have a problem with a potentially prejudicial issue.

"The constant raising of hands can pollute other jurors," he said. "It's time consuming to conduct an inquiry at many different levels, including private questioning, but absolutely necessary to insuring a fair jury."

Posted by Marcia Oddi on April 10, 2009 03:34 PM
Posted to Courts in general