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Looking Foolish

There’s an experienced judge in a nearby jurisdiction who won’t rule in advance on whether he will allow the parties to ask their proposed voir dire questions. His position, which he makes very clear, is that he will rule on the questions when they’re actually asked. He isn’t kidding. If the state objects after you ask it, he rules. The opposite is also true. Otherwise, you can ask whatever you want. No ruling. It makes submitting your questions pointless, though every other judge in the jurisdiction orders you to do it in advance.

I once asked him in chambers why he does it that way, and he said it was because he thought the parties should be bright enough to know what they can and can’t ask. His position seemed to be that it should be like asking questions of witnesses during trial; lawyers don’t have to submit every single question they intend to ask each witness in advance. They should know what is and isn’t okay.

My first thought was that he’d failed to realize that, although the parties don’t submit every question they intend to ask the witnesses, occasionally, a motion in limine is a good idea. I’d love to submit this proposed voir dire question and see if he let me ask it rather than rule in advance:

How many of you would be more inclined to find my client not guilty if you knew he was facing a life sentence and that you’d have to endure a really irritating Blakely trial if you convicted him?

Maybe that’s an ethics violation. Hmm. Gotta think about that one. Might be worth it for the look on his face (and the mistrial). Kidding, of course.

Anyway, his reasoning about why his method didn’t cause problems was that a lawyer who asked improper questions would draw a lot of objections that would be sustained and end up “looking foolish.” Aside from presuming that prosecutors are competent and know when to object, honestly a pretty good presumption in his jurisdiction given the overall quality of county attorney there, I think the bigger problem is that he assumes a jury would hold sustained objections against the party asking the question.

Prosecutors aren’t always very likable. Judges aren’t always so likable either. I sometimes do a pretty good job of convincing jurors that my client and I are the two people in the room with whom they have the most in common. It’s almost always true. I don’t see empanelled a lot of people who are among the lucky 1% I keep hearing about. They’re usually good, hard-working, ordinary citizens who got summonses. They distrust the government but vote to let it control either the bedroom or the boardroom because they think they have to choose Bud or Miller. They never think about how a glass of ice water might be a little healthier, but in the microcosm of the courtroom, things are different.

If I’m trying to talk to them, a prosecutor keeps standing up and arguing with me, and a judge keeps telling me to shut up, I’m not so sure I’m the one who’s going to end up looking foolish. It may end up looking a lot like a cover-up of some kind.

I’m not asking them for their opinions, not their social security numbers. I want to know them, and I care about their thoughts and feelings. They try to talk. They’re shut up and told to listen, listen, listen. They hear lawyers and an ex-lawyer carry on for days. I want them the share, share, share. Putting myself on their side and getting shot down over and over again could be the best thing that ever happened to my client.

It’s an interesting situation. If I were more adventurous, I might submit a novel’s worth of proposed voir dire questions. I might include some clearly objectionable ones. I might start to ask them and draw objections that’ll be sustained. Maybe they’ll start with things like, “the judge and the prosecutor don’t want you to know that…” Good idea? Oh well, probably not.

On a lesser scale, though, in a case where my theme melds well with the state covering up what really happened, getting a series of sustained objections when I’m clearly just trying to start a conversation might trump any evidence I end up presenting after the jury’s sworn. I haven’t had a chance to try it, but it’s certainly something worth exploring. Within reason and the rules of ethics, of course.

The funny thing is that the judge’s policy, as strange as it might seem, has the effect of enabling me to know a jury far better than I would otherwise know. I get to talk, but more importantly, I get to listen. I’m okay risking looking foolish if it means I’m at least given an opportunity to ask questions I wouldn’t otherwise be able to ask. Sadly, that’s more than I have in most courts.

The judge’s demeanor tells me he might relish the idea of making me look foolish, but given his experience and the outcomes I’ve seen in his courtroom, I almost wonder if he’s doing it to help me, not embarrass me.

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