Public Defense

The problem with voir dire

By Gideon

Is that sometimes you end up taking jurors you have no business taking. Like the R. Kelly trial. From media accounts:

Those jurors include an African-American woman whose husband is a Baptist pastor, a black man who identified himself as a Christian and a white executive who said he thinks Kelly is guilty.

What’s that again? A juror who has made up his mind? How can this juror possibly be seated, right? Because the law is full of legal fictions. One of these fictions is that if a juror says something extreme, he can be “rehabilitated”. (Oh, the irony.)

The white juror said he believed Kelly was guilty, but that he could give him a fair trial.

“I have two little kids,” the man said. “Child pornography is about as low as it gets.”

[Judge] Gaughan asked the man to look Kelly in the eye and promise him a fair trial.

Why do we perpetuate this nonsense? Does anyone reading this believe that this juror will “give him a fair trial”? Are we that starved for jurors that we will accept venirepersons who state that they have already decided on the guilt of the accused? Does the right to a fair trial really mean the right to the appearance of a fair trial?

I can understand the defense not pushing this too much - the judge has just created an appellate issue - but the Court should know better. In a high-profile case like this, wouldn’t you want to avoid any potential problems?

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Full post as published by A Public Defender on May 14, 2008 (boomark / email).