Monday, August 3, 2020

A Proposed Alternative to NRG Jury Selection

Over the weekend, I received a couple of comments on my last blog post wanting to know what my plan would be for getting jury trials back up and running.  Those are fair comments.  I try to suggest alternatives to plans I criticize, but I recognize that I don't always do so.

When I was walking around NRG Arena and looking at how woefully insufficient it was for the purpose of picking a jury, I mentioned to one of the prosecutors there, Paul Fortenberry, that sometimes there just isn't a solution.   Not having a solution doesn't reduce the urgency of the situation.  As humans, it is our nature to be averse to the idea that there may not be a viable solution in a crisis.  

The negative reaction from criminal trial lawyers (and by that I mean both criminal defense attorneys and prosecutors) to the NRG Arena Plan is two-fold. The first being that nobody bothered to make any attempts to gather input from any of us before diving headfirst into the plan.  I recognize that this is going to make the Powers That Be respond with "Oh, so you're just mad because you weren't included!"  But that's not where I'm going with this.

If the actual trial lawyers had been consulted from the beginning, maybe we wouldn't have ended up in a contract deal with NRG that was too big to fail -- or get out of.  I can't imagine a trial lawyer on earth who would have ever endorsed the idea of picking a jury with such bad audio and visual conditions.  Maybe if trial lawyer input had been invited (and given any weight) on the front side, the County wouldn't have been so quick to pull the trigger on NRG.  If they hadn't pulled the trigger on NRG, they wouldn't be so firmly entrenched against any other ideas.

The second factor in the negative reaction from criminal trial lawyers is based on the fact that we have a different set of factors at stake than civil trial lawyers.  Please understand that I'm not trying to diminish the importance of a civil trial.  I'm really not.  But the differences between a civil trial and a criminal trial are glaring when you put them to the test under the NRG Arena Plan.

To start off with, civil firms, especially the larger ones, might actually have the capacity to bring enough personnel to NRG Arena and deal with the extraordinarily wide layout where venire members will be seated.  They have associates and a stable of clerks that can spread out and pay attention to juror reactions and responses.  (NOTE:  Before my friend Jason Truitt starts indignantly telling me how he tries all of his civil cases alone, while fending off a pack of wolves with his bare hands, I realize that this isn't always the case.).  

Additionally, civil jury selection is a different animal than criminal.  I was on a civil panel one time and I was stunned at the differences.  The lawyers pretty much presented their cases during voir dire and got relative commitments from all of the potential jurors.  It was crazy!  They also seemed to be provided with as much time as they needed for voir dire.  Must be nice.

The biggest difference, however, is that a jury verdict in the civil world often seems (at least to an outsider) to be one of many steps to reaching the final resolution of a case.  It usually appears to be far from the last one.  For reasons that escape me, judges cut awards from juries or negotiations continue about what will actually get paid out after the jury has spoken.  For the criminal case, it ends when the jury renders its verdict in 99% of the cases.  If the Accused is found Not Guilty, the State doesn't get a second shot at it.  If he or she is found guilty, odds are slim that the case will come back on appeal.

The criminal jury trial is tried with (in most circumstances) irreversible consequences.

The reason that I'm revisiting all the reasons to hate the NRG Arena Plan is that what my suggestion would be as an alternative would be a radical departure from the NRG Arena Plan.  It would be expensive, controversial, flawed, and pretty widely disliked by the judges.  Please remember that when I began this post, I noted that sometimes there just wasn't a good solution.

My suggestion is comprehensive questionnaires and individual Zoom voir dire on all cases -- just like on a death penalty capital case.

For those of you who are outside of the Criminal Justice World, on almost all cases that do not involve the death penalty, juries are selected in a process where the attorneys ask a group of about 65 potential jurors questions over the course of a few hours.  The attorneys can ask individual jurors specific questions if they need to, but generally, the entire panel of 65 will be there when those questions are asked.  At the end of the process, strikes are made and the first 12 people left standing become the jury.

In a death penalty capital (under normal circumstances), more time is spent selecting the jury for obvious reasons.  In these cases, a large panel is generally brought over for an initial voir dire from the court, but then the individual venire members are scheduled to come back at designated times for some solo questioning from the lawyers.   Additionally, jurors on death penalty capital cases are provided with a fairly lengthy questionnaire containing questions relevant to serving on a death penalty case.  In many instances, the prosecution and the defense will read a juror's questionnaire and agree to strike him or her prior to the individual questioning.

My suggestion for selecting a jury in a COVID world is largely based on that model with a couple of relatively minor modifications.  Here are the steps:

1.  Jury summons goes out --  Just like during normal times, the notices will go out in the mail for "virtual jury duty."  Rather than being called into a jury assembly room as they would during normal times, the venire panel will be requested to check-in online prior to their service date and time.  Alternatives for those who do not have internet access will be provided at alternate sites around the county (like a Justice of the Peace courthouse or a library).

2.  Jury Duty Day --  On the day and time, the jurors who have checked in will then be parsed out to their individual courts.  They will then log onto a Zoom (or other conferencing platform) that is specific to the court they have been assigned to for jury service.   There, they will hear a general voir dire from the judge that covers certain issues relevant to the case to be heard.  This could be something pre-recorded or done live.  They will also be provided with an online questionnaire agreed upon by the State, the Defense and the Court.  If they have any type of scheduling, health, or other concerns, they can make note of them in these questionnaires.  

The individual venire members will then be given a date and time to log back in for individual voir dire.

3.  Behind the Scenes --  The State and the Defense will both have access to the venire members' questionnaires and have overnight to read through them and evaluate them.  Like in capital voir dire, agreements can be made by the parties on strikes.  Questionnaires can also cover scaled questions that lead to strikes for cause.  If the State and Defense agree that a juror is gone, they notify the Court for approval and that juror is notified that he or she doesn't need to report for his or her scheduled individual voir dire.

4.  Individual Voir Dire -- When I started to write this post, I envisioned individual voir dire being conducted on Zoom, but the more that I think about it, that doesn't really seem necessary.  If individuals were showing up at slotted times rather than en masse as a group of 65, it would be far easier to social distance.  Most members of the Defense Bar are opposed to Zoom, and this may be an area of compromise.  Personally, I wouldn't mind it either way.  An individual voir dire trumps the basketball arena-style proposed at NRG Arena, even if it is done by Zoom.

5.  Selecting the Jury --  Like with the death capital voir dire, there are two ways of doing this.  One option is that a decision is made after a venire member's individual voir dire over whether or not the State or the Defense wants to exercise one of their peremptory strikes.  If neither does, that person officially makes it on the jury.  The other way is to get a qualified pool of thirty-two potential jurors (that accommodates the 10 strikes each for the Defense and the State, plus 12 jurors, for those of you not accustomed to picking juries) and then making the peremptory strikes.

Personally, I like the latter version because the attorney can make more educated strikes knowing what the entirety of the eligible panel looks like.  However, the first version could potentially be faster.  Either way, it is safe to assume this method of voir dire would take several days, if not a week or so.

The Powers that Be would probably argue that the length of voir dire is too long and that's why using NRG Arena is the better method.  I disagree.  If this method was followed, theoretically, all the courts in the courthouse could pick a jury whenever they wanted to.  Since mass panels wouldn't have to show up in person, it wouldn't violate the rules of social distancing.  The current plan at NRG is to only call four panels at a time, at most.

Even if the argument over expediency is ultimately won by those who support the NRG plan, expediency isn't the most important goal.  Not by a longshot.  Safety is more important.  And more important than both expediency and safety is fairness.  

This method allows both the State and the Defense to accomplish a meaningful voir dire session with the venire panel in a way that the NRG plan doesn't come close to.  Even though I'm sure there are multiple logistical flaws that I'm glossing over, this system is fairer to both sides.

It also makes things a hell of a lot easier for security for inmates in custody to be brought to proceedings by the Sheriff's Office.   

It also might save a little more money than that $16 million (and counting) already approved by Commissioners Court for the NRG plan.  I'm just saying.

Then again, nobody asked me.  

Nobody asked any of us trial lawyers.


Jason Truitt said...

One riot, one ranger.

Although admittedly, now that the firm has grown we might have extra bodies to throw at something like this. But that also has the effect of doubling or tripling the cost of a trial—not as big a deal as life or liberty, but a real problem nonetheless.

I will also be looking for every possible way to object to this plan. Your point that they wouldn’t be so entrenched had they just asked the people who try cases is spot on.

And no way should you exercise a strike until you’ve seen the whole panel—some judges horse trade strikes (“I’ll give you this one, but not that one...”) to avoid busting a panel, so you better be able to get rid of the worst ones, which you can only do if you’ve seen them all.

Lee said...


I like your plan marginally better for two reasons. I am able to skip the invasive inconvenience of security checkpoints and maintain social distancing.

I am however very reluctant to undertake the duty of a juror or lawyer on zoom especially when ones liberty or life may be at stake in a criminal trial. Speaking as someone on the high functioning end of the autism spectrum and who struggles with interpersonal communication I am very apprehensive of any part of a criminal trial being done via zoom. We already have a massive error rate (as evidenced by the Innocence Project) in our criminal justice system and this seems to increase the amount of parts in an already complicated assembly line machine that could malfunction. I did read an article a few days ago about how to maintain social distancing that some police administrators were throwing around the idea of doing interviews over zoom and how that would impede investigations. As part of my autism, I often struggle with interpreting body language, facial expressions and other types of nonverbal communication of which I know is picked up on by the jury and lawyers in a trial. The use of that communication can be problematic and also a critical piece of the communication from time to time. In a perfect world such things not relevant to the crime that took place many months ago should be unavailable to the jury and I even thought about being the first lawyer to file a motion permitting my client to wear a hockey mask so that his nonverbal communication may not be used against them. My point is that for many regular meetings in the business world zoom conferencing can help bridge the gap in communications that this pandemic has caused but it is not a complete solution. What if a jurors connection is interrupted as an important piece of evidence is being presented or witness is being examined?

For those potential jurors without internet access, you were very vague as to how they can accommodate to their jury summons. I am guessing that they would be required to report to another facility where they would undergo security, possible coronavirus exposure and be provided with access to the virtual platform?

You may be right in that there is no good solution. If the powers that be pick the least bad of many bad solutions (whichever it ends of being), is there a guarantee that selection will accommodate all of the rights of the accused? If the answer is no, then why are we choosing something that is unconstitutional?

Choose you must the best for your client.


Anonymous said...

The other enormous difference between civil and criminal trials is the latter happen way more often than the former. Prosecutors and defense attorneys are well versed in how to pick juries because they do it a lot. "Litigation" divisions in civil firms ought to be renamed "summary judgment" or "settlement" divisions instead because they are not litigating anything. We understand the multitude of problems with the NRG idea because we have little to no help or funds. You're right. Money can overcome some of the problems, which is one more reason to kill NRG trials. A criminal defendant has a constitutional right to a fair trial and having enough time to pick a jury and being able to judge facial expressions, attitudes, and hear answers adequately all prevent a criminal defendant and the State (both have a legal right to a fair trial) from getting one because of inadequate voir dire. Your idea is much better.

Thorhees21 said...

To anonymous 3:08, I've been retired from the criminal justice system for a few years, but I totally agree with your assessment of the current crop of stooges on the bench in both civil and criminal courts. Hopefully the problem can be corrected very soon. After said correction, perhaps Harris County should adopt a jury selection process similar to that of federal courts where prosecutors and defense attorneys file written requested voir dire questions and only the judge questions the panel.

Jason Truitt said...

"The other enormous difference between civil and criminal trials is the latter happen way more often than the former. "

I know criminal lawyers think this is correct, but it just isn't. There are civil trials going on every day in normal circumstances. Not always big ones, but they are always there.

"The only thing these judges are fit to preside over is an empty plate of bones at a wing eating contest."

Murray, you probably shouldn't greenlight such blatant racism in the posts.

Murray Newman said...


You are right on both counts. I know you are in trial quite frequently during normal times. I think there is the perception that the civil trials don't go as much because not as many make the news. By contrast, there is usually some criminal case making the news several times a week.

As to the racist comment, you are correct on that as well. I didn't read the comment all the way to the bottom before posting it, which I'm guilty of doing on longer comments when I'm in a hurry. I'll be more careful in the future and the comment has been deleted.

Jason Truitt said...

Whoa. The world must be about to end.