Jury Stacking in Eagle

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom Report--www.FreeColorado.com

Jury Stacking in Eagle

by Ari Armstrong, September 1, 2004

It figures that on the only day I address the Kobe Bryant case, the prosecution drops the charges between my first and final drafts. Nevertheless, recent events of the pre-trial warrant review, as they are relevant to every criminal trial.

Libertarian radical Vin Suprynowicz believes the only way to appropriately seat a jury is to select people at random from the community, without prior questioning, and to fully acknowledge the right of the jury to practice nullification. He jokes "voir dire" is "a French term for jury stacking" (it actually means to "truly say"). I'm not sure Suprynowicz completely makes his case, but I am concerned that voir dire is often used to unfairly get rid of perfectly competent jurors. Those who seem too intelligent are bound to be kicked off by one side or the other, creating a systemic bias in the system.

Today both major Denver dailies reported about the voir dire process in the Kobe Bryant case. The papers cited question 72 from an 82-question form distributed to the jury pool:

Based on what you have read, seen, or heard about this case, which of the following reflects your opinion of whether or not Kobe Bryant is guilty or not guilty of the sexual-assault charges:
* Definitely guilty
* Probably guilty
* Possibly guilty
* Possibly not guilty
* Probably not guilty
* Definitely not guilty
* Not enough to decide

The only appropriate response to the question, prior to the trial, is "definitely not guilty." The only possible way to be "guilty of charges" is to be found guilty by a jury. Bryant has not been so found; therefore, he is "definitely not guilty." This truth is incontrovertible. Upholding this truth is essential to the American legal system, the foundation of which is the presumption of innocence. If asking this question during voir dire is appropriate at all, its only legitimate purpose is to dismiss everyone who answered something other than, "Definitely not guilty." To move away from that position, a juror must, during deliberation, find the prosecution has proved the defendant's guilt beyond a reasonable doubt. If all the jurors agree, then the defendant becomes "definitely guilty of charges" upon the jury's pronouncement.

The question should not have been asked because it implies determining shades of guilt during a criminal trial is somehow appropriate. It is not. There is only one standard of guilt: beyond a reasonable doubt. Whether a defendant is "possibly guilty" or "probably guilty" is entirely irrelevant to a criminal trial.

Of course, the intended purpose of the question was to discover if anybody in the jury pool already had strong feelings about whether Bryant raped the alleged victim. Arguably, people who have jumped to irrational conclusions based on spotty evidence should be excluded from the jury. But the question creates a catch-22 for members of the jury pool: it requires that they try to second-guess the purpose of the question. Jurors who answer the question with the only acceptable answer, according to the question's clear, literal meaning, risk unjust ejection from the jury pool. Thus, voir dire gives competent members of the jury pool the choice of endorsing an unjust outcome or fudging their answers.

Of course, prosecutors were concerned only about jurors who answered the question correctly. As Peggy Lowe and Charlie Brennan reported for the Rocky Mountain News, "Prosecutors in the Kobe Bryant rape case briefly stopped secret jury selection Tuesday because they fear potential jurors who think the basketball star is innocent could prejudice others." Gee, we wouldn't want jurors to be "prejudiced" in favor of the presumption of innocence -- what a disaster that would be.

At least Judge Terry Ruckriegle "reminded the lawyers that they are not to find people who have never heard of the case, nor are they to look for people who don't have opinions. 'The question we need answered is, can they set aside the other information and will they make a determination based only on the evidence presented at trial, and not any other information to which they may have been exposed,' Ruckriegle said," according to the News.

Howard Pankratz of The Denver Post adds, "[Prosecutor Ingrid] Bakke told Judge Terry Ruckriegle that if potential jurors respond 'probably not guilty' or 'definitely not guilty,' they should be kicked out of the Bryant jury pool if the opinion is based on what they read in the media or from other sources. Bakke said there is a clear distinction between a juror who believes a defendant is innocent based on the presumption of innocence versus a juror who believes the defendant innocent based on information obtained before trial."

At least Bakke made some concession to the notion of presumed innocence, but that doesn't change the fact that the only legitimate answer to the question, as written, is "definitely not guilty." Unfortunately, the message Bakke sends to future potential jurors is that, if they want to see justice done, they'd better play stupid so as not to get unjustly tossed during voir dire. Whether or not voir dire means jury stacking, it apparently doesn't mean to speak the truth.

The Colorado Freedom Report--www.FreeColorado.com