Jury Voir Dire Uncovers Witness to Crime

The Cincinnati Enquirer has the story of the juror, who becomes the witness.  Check out reporter Kimball Perry's story and tell me that this isn't ready-made for a Law & Order episode:

"In a stunning twist to a Tuesday Hamilton County jury trial, Najah Johnson-Riddle went from juror to witness.  'I was astonished,' said defense attorney Roger Bouchard.  'I was shocked and surprised,' Assistant Prosecutor Ryan Nelson said.

Common Pleas Court Judge Robert Ruehlman said from the bench he'd seen nothing like it in his 33 years as a prosecutor and judge.  Johnson-Riddle was one of 12 jurors seated to hear the domestic violence and felonious assault charges against James Capell, 42, of Colerain Township.

Capell is accused of - but has pleaded not guilty to - brutally beating a woman in her College Hill home May 30. He is accused of breaking the glass out of the woman's door in the 1200 block of West Galbraith Road, entering her home and using his keys to beat her in the face, then choking her and biting her ear. 'He punched her in the face. He beat the crap out of her. He brutalized her,'  Nelson said of the victim who needed several staples to close a head wound

A neighbor across the street anonymously called 911 to report the brutal beating.

When police arrived, though, Capell is accused of keeping the woman in the bedroom, covering her mouth and threatening to kill her if she cried out. The police, seeing nothing amiss and hearing nothing, left.  When they did, the beating resumed. The victim was able to call a relative who called 911, resulting in the arrest of Capell - who already had two felony domestic violence convictions involving another woman and was sent to prison for it for two years in 2007.

Jurors were seated late Monday. The trial began Tuesday. Nelson gave his opening statements, telling jurors what he expected the evidence to prove. Bouchard was doing the same for the defense when juror number eight, Johnson-Riddle, stunned the courtroom and stopped the trial by blurting out she couldn't sit on the jury.

'She said, 'I was the (anonymous) person who made the 911 call,'  the assistant prosecutor said.

'She said, 'It woke me up out of my bed and I saw him beating on her. I thought she must be dead.''

Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, Ruehlman declared a mistrial.  The new trial begins Wednesday - and Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.

'My thought was 'No way.' There are millions of people here. She must be asking about another incident,'  Nelson said.

During jury selection, potential jurors aren't told the facts of the case. Instead, they are questioned so attorneys can determine the person's background, job and other information that will help them decide if that person should be seated.

The charges against Capell carry a maximum prison sentence of 13 years.
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Judge Ruehlman may have not encountered this situation in 33 years, but I have.

Many years ago, I was trying a simple car accident case, when the jury venire (prospective, jurors) was ushered into the box.  I was given a list of the jurors, and their occupations.  One of the prospective jurors was the investigating officer in the underlying car accident--he signed the police report.  While the juror/cop was not called as a witness in my case, "liability" was not the issue, we were trying the case for a jury determination of damages, only--he was obviously not eligible to sit as an impartial juror. 

Unfortunately, the court began voir dire (questioning of the prospective jurors) without giving me an opportunity to point out the problem.  The Judge described the case is some detail with no obvious sign of reaction from the prospective juror.  The judge asked if any of the jurors knew any of the parties, no reaction.  The Judge asked if any of the jurors knew any of the attorneys, the cop/witness raised his hand.  "I think I know, Mr Bad Lawyer, over there (pointing at me,)" he said.  The Judge asked how he knew me. "I think he represented me in a workers' compensation claim," he replied.  He was excused from the jury.  It never dawned on this prospective juror that he was the investigative police officer in the motor vehicle accident.

I represented thousands of injured workers (and employers) in workers' compensation matters (I covered hearings for referring attorneys in addition to my own small practice) over two decades.  It never occurred to me that in addition to being the investigative cop, a witness, and a prospective juror--this officer also had been a client, if only, momentarily at a workers' compensation hearing.  This was just a remarkable coincidence.

It's OK to be Chicken, But You Won't Sit On the Jury

A story at the San Jose Mercury News explores the problems with jury selection when the prospective juror is frightened.  This is reporter Julia Prodis Sulek's account:

"A potential juror in a Los Gatos murder-for-hire trial who described herself  'to be a chicken in general' was excused from serving Wednesday after she said the idea that killers could be in the room made her feel 'fearful and intimidated.'  The woman was one of four potential jurors excused 'for cause' by Santa Clara County Superior Court Judge David Cena in the case against restaurateur Paul Garcia, who is accused of ordering the 2008 shooting death of Mark Achilli, who sold both Mountain Charley's Saloon and the 180 Restaurant and Lounge to Garcia.

Prosecutors say Garcia was jealous of Achilli because his sometime bartender girlfriend was also dating Achilli. The two men accused of helping carry out the plot, including the shooting suspect, are also on trial.

Since last week, lawyers have winnowed what had been a jury pool of nearly 600 down to just more than 100, with most being excused because they couldn't afford to sit through a two-month trial. They hope to seat 12 jurors plus four alternates by next week.

The pool of jurors sweltered in a crowded courtroom Wednesday afternoon when the air-conditioning broke down, prompting prosecutor Jeff Rosen to take off his jacket and joke to jurors that when he went to the gym Wednesday morning, 'I was disappointed they took the sauna out, then I came to court today.'

Wednesday was the first day lawyers questioned jurors about how much they had heard about the case and whether they could be fair. The juror who said she felt fearful also said she can be guilty of  'making assumptions' and 'judging people partly on appearance.'  She said she didn't know whether she could withhold judgment until after she's heard all the evidence.

[A] woman who has a relative who was friends with Achilli [was also dismissed.] The relative [spoke] to the juror at length some time ago about who she thought was responsible for the killing and why. A chemist who also called himself a homemaker was dismissed after he said he would be distracted during the trial thinking that he should be taking care of his young children. One of his relatives was a lawyer, he said, and he 'wasn't sure' if he could be fair. An Asian man who had trouble understanding English was also excused."
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You see this sort of thing in Baltimore, Chicago, Detroit and Philadephia local news websites.  I can only imagine how frustrating this is for the lawyers, judges, and others connected to trying these violent crimes.  We've seen numerous situations over the last year where even after the jury is selected there is jury and witness intimidation by spectators (so-called friends of the defendant) who gesture from the gallery or point cameras at the jury box. 

While I carry stories of bad judges, lawyers, prosecutors and others, you should not conclude that I think what we do for a living is easy or enviable.  It is often deadly serious.

Public Trials, Dammit!

The United States Supreme Court published a Per Curiam decision yesterday in Presley v. Georgia, reversing a Georgia trial court conviction for cocaine trafficking because the trial court prohibited the public from voir dire.  That's right folks, we the people have a right to watch our government do what our government does even really important stuff like picking a jury; seriously, Georgia, wtf?!

The Supreme Court per curiam (by the court--meaning the decision was by the whole court and not by a specifiic Justice) found the exclusion of the public violative of the Sixth and Fourteenth Amendments of the U.S. Constitution.  We talk about the Fourteenth Amendment (substantive and procedural due process, and equal protection) all the time on Bad Lawyer but, I don't know that we have been specific about the Sixth Amendment, it commands:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall hae been committed, which district shall have neen previously ascertained by law, and to be informed of the nature and cause of the accusation;  to be confronted with the witnesses against him;  to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defen[s]e.

Pretty cool, huh? 

A trial as we discussed before, a trial begins with jury selection.  Why a Georgia trial court, and why the Georgia Supreme Court thought the Sixth Amendment was inapplicable to Mr. Presley is dumbfounding.  Oh, one U.S. Supreme Court Justice did write, it was a dissent, and it wasn't 'Nino (although he joined--as pointed out by Deraj,) you'll have to read the opinion for yourself to find out who--it's my way of making you look at the real thing.