The other day, Houston Criminal Defense Lawyer Mark Bennett, the Texas Tornado, posted about voir dire in a federal case.  It was a short post.  That was all he needed:

A judge’s voir dire is calculated to get jurors to promise to follow the law while a lawyer’s voir dire is calculated to find those who might have difficulty following the law.

A judge’s voir dire is calculated to get jurors to agree with the judge while a lawyer’s voir dire is calculated to find those who disagree.

A judge’s voir dire is calculated to qualify more jurors while a lawyer’s voir dire is calculated to find those who are not qualified.

That pretty well sums it up.  For state court practitioners who don’t visit the really nice wood-paneled federal courtrooms too often, all the efforts put into voir dire go straight out the window.  In state court, voir dire can take days.  In federal court, you’re almost guaranteed a jury before lunch.

This makes it all the more ironic that the Supreme Court considered the issue of magistrate-conducted voir dire in Gonzalez v. U.S.. as Jon Katz (Randazza’s muse) posts at Underdog.  There, the Supreme affirmed a conviction where the lawyer agreed to have a United States Magistrate Judge conduct voir dire, thus saving the District Judge’s time for more important things like approving a speedy trial waiver.  The problem was that the defendant never waived Judge-conducted voir dire and agreed to let the magistrate do it instead.

Once justice dissented in Gonzalez.  No, not Scalia (he concurred).  As Jon put it,

This case is worth reading both for the majority opinion and for Justice Thomas’s dissent, in which he insists that defendants — not their lawyers — personally have the opportunity to say aye or nay on the record about having a magistrate judge conduct jury selection. As much as I did not want Justice Thomas to join the Supreme Court and still feel the same way, I thank him for his dissent in  Gonzalez  .

I can appreciate Jon’s gratitude to Justice Thomas, even if it’s only this once.  The idea that defendants (you remember them, the people who actually do the time after the lawyers go to the bar for happy hour) actually have a hand in their own fate matters.  It’s a slippery slope when courts and defense lawyers forget that these are real people at stake here.

In this particular instance, however, the issue is far more form over substance.  First, as noted by the Texas Tornado, federal voir dire is a show put on to pretend that we have something to say about who gets on the jury and make us feel like lawyers. 

Second, ask a defendant whether he would prefer judge-run or magistrate run jury selection.  These are the full panoply of potential responses:

a)  Blank stare
b)  “What do you think?”
c)  “What’s the difference?”
d)  “What should I do?”
e)  Silence while gazing at the window

The plain truth is that this, like most other decisions at trial, is of little interest to defendants.  They want to win, and they want their lawyer to win it for them.  They expect their lawyer to be their lawyer, make lawyerly decisions and handle such matters.  And who can blame them?

I agree with Jon, and Justice Thomas, that decisions that are given to “the defendant” should remain with the defendant as a matter of principle.  I agree that it is vital that defendants remain part of the game, not merely an observer to a trial as their life is decided by a group of people who presume to be able to distinguish truth from fiction. 

But the reality is that the decision will always be made by the lawyer on matters such as this, because that’s why people have lawyers and why the Constitution guarantees them the right to be represented by counsel.  The words of assent should be uttered from the mouth of a defendant, after a full and accurate explanation by the judge of the rights at stake.  But the decision comes from the lawyer, and most lawyers realize that in federal voir dire, it doesn’t matter anyway.