Tuesday Talk*: Voir Dire Behind The Mask

In the early days of the pandemic, the conflicts quickly emerged. People were arrested but not arraigned because there were no judges sitting on benches to do so. They were detained but not indicted because there were no grand juries to hear the case. They remained in jail awaiting trial but not tried, because the courts were shut down and there were no juries. Bit by bit, adjustments were made, from conducting trials over Zoom to masked and socially distanced jurors.

On the one hand, having a defendant sit in jail because the system shut down was a disaster, particularly when the length of time awaiting the system to ramp up sufficiently to at least address the poor guy’s incarceration could easily exceed any punishment that might follow. On the other hand, the adjustments made were, to be blunt, inadequate. Zoom trials? Masked  witnesses and jurors? Was this good enough to satisfy due process? After all, we might be in the midst of a pandemic, but did that mean constitutional protections for defendants were suspended while the wheels of the system continued to grind?

From Commonwealth v. Delmonico, decided last week by the Pennsylvania intermediate appellate court (Judge Correale F. Stevens, joined by Judges Mary Jane Bowes and Alice Beck Dubow):

Appellant complains that “[t]he members of the entire venire were required to wear face coverings and were then spread out over a vast distance, far more spread out than is standard practice for voir dire, a minimum of six feet apart, for social distancing purposes.” He contends that, because of these restrictions, the trial court was unable to fully examine the prospective jurors’ conduct and demeanor in determining their credibility and fitness to serve, and consequently, Appellant was not ensured the empaneling of a competent, fair, impartial, and unprejudiced jury….

We conclude the trial court did not abuse its discretion as to the scope or form of the voir dire examination and abided by the “essential demands of fairness.” There is no indication the trial court was unable to adequately view the prospective jurors, examine their conduct, or perceive any factors indicating an “unsettled frame of mind[.]” In fact, the trial court indicated in its opinion that it was able to adequately assess the prospective jurors’ answers during voir dire so as to determine, inter alia, whether to disqualify a prospective juror.

It should come as no surprise that these issues would arise. For many criminal defense lawyers, the situation was dire as their clients sat in cells and wanted to get out, while they simultaneously realized that there was no easy answer to a pandemic-fearing public. Would any rational potential juror be willing to risk getting COVID by agreeing to sit in the box during voir dire without a mask? Who were these people in the courtroom, exposed as they were to all manner of coronavirus? Jury duty isn’t exactly a thrilling opportunity in the first place, but it surely wasn’t worth dying for.

That the court upheld the mechanisms used by the trial court to do its best to conduct a trial under bad circumstances shouldn’t come as much of a surprise. What else could it do? Was the appellate court going to invalidate the trials that were held because the lawyers, and the judge for whatever that’s worth, couldn’t observe the demeanor of jurors as they were questioned?

But then, these words could linger long after the masks come off, assuming that day ever comes: The trial court “abided by the ‘essential demands of fairness.'” It’s understandable that the court refused to openly admit they were fudging the constitutional details because this was a very unusual and difficult situation. Inter arma enim silent lēgēs.

What may be far more concerning than this unsurprising decision is the reaction to it.

It’s one thing to wiggle one’s way through accommodations in a quasi-constitutional system arising from bad circumstances. It’s another to condemn lawyers for fighting for the constitutional rights of their clients when it cuts against the prevailing grain. George Conway is an important voice in law, considered for the post of Solicitor General and former head of the Civil Division of the Department of Justice. And he can’t believe an attorney fought for his client’s constitutional rights.

I can’t believe that constitutional rights mean so little to so many. I mean, I can, but I don’t want to.

*Tuesday Talk rules apply.

19 thoughts on “Tuesday Talk*: Voir Dire Behind The Mask

    1. SHG Post author

      Has Conway ever been on trial? I don’t know. But I would hope he has the capacity to grasp what it means to try a case.

  1. CLS

    I can’t believe the doctor didn’t cut the cord and hang himself with it when George was born.

      1. CLS

        You’d have been disappointed with me if I didn’t throw a quality zinger out there like that and you know it.

        1. losingtrader

          CLS, Are you certain you didn’t steal this from the SHG Insult List and re-write it slightly?
          It seems suspiciously like insult #467.

  2. Charles

    This is one of those arguments that was never going to win. But every now and then, you do.

    Since HG hasn’t shown up yet:

    “Do or do not. There is no try.” – Yoda

  3. Miles

    You can’t blame the guy for trying. I would. You would. He did. Sorry, Charles, but your quote doesn’t get anyone anywhere. You try because it’s your duty to make the legit arg even if the chances of a pragmatic court biting are slim to none.

    But Conway not merely disagreeing (because he’s got no clue?), but suggesting that there is something wrong, legally, ethically, morally, with a lawyer making a sound argument for his client is where the level of lawyer discourse is today. It’s no longer about disagreement, but some sort of vague outrage at the very notion that a lawyer will fight for his client’s rights. Fuck him.

    1. Charles

      No sense of humor, have you, Miles?

      I think we agree on the point of my comment. The quote was tossed in only because HG hadn’t walked into the hotel bar today.

      Are we “trying” in all that we do? Well, yeah, we’re “practicing” law. But if the argument is legitimate and we’ve made a strategic decision to raise it—even if it’s a million-to-one argument—we “make” the argument. We don’t just “try.”

      1. SHG Post author

        Pipe down, both of you. You’re giving me a headache. And where the hell is HG anyway? And where’s FUBAR?

        You gotta be in it to win it.

        –Ancient Chinese proverb.

        1. Ghostoffubardave

          His odds were a million to one
          But like a dutiful good fathers son
          His client came first
          In spite of outbursts
          From a snob who forgot how it’s done.

  4. Kathleen Casey

    I’m worried about not only voir dire but also eyeballing the jurors’ reactions during trial. Clear plastic masks might work. The deputies provided me with one to assist in representing a deaf client recently. A lip reader. Through the generous offices of OCA I surmise. Seems as though clear masks would be appropriate for a jury pool.

    But it is not good enough. The willingness to serve is always factor as you mention. The covid spectacle undermines or tends to undermine due process and the right to a fair trial as you’re saying in your own words. Balls.

  5. Guitardave

    It does say, ‘a jury of your peers’, so you can’t really blame someone for not wanting snaggle-toothed, slack-jawed yokels in the jury box…at least if you’re not a snaggle-toothed, slack-jawed yokel yourself.
    Fucking stupid, useless face diapers. Maybe Conway is suffering from cerebral hypoxia like so many other formerly intelligent people.

Comments are closed.