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Jury process repetitive, necessary

Depending on who’s being asked, jury duty is either an important civic responsibility or a gross inconvenience. Neither characterization is absolutely correct, but it’s important to make a commitment if the government ever asks where you stand.

That is to say, you must tell the truth.

Kitsap County sends out around 800 jury summonses each week, but only about a third of the recipients will end up at the courthouse.

Recipients can postpone service, and many do, while others may just have moved out of the area.

Prospective jurors are assigned to groups and must call each night for instructions. The numbers needed depend on trial schedules. On a slow week, some groups may not be called at all, and the members will be off the hook for a year.

Other weeks are jammed. This past week, for example, the county required the service of 347 jurors.

Each group of 42 prospective jurors are assigned numbers and file into the courtroom for the selection process. The first 12 sit in the jury box, while the rest occupy courtroom benches.

During the process, called “voir dire” (translated: to speak the truth) the jurors are questioned first by the judge, then the plaintiff’s attorney and then the defense.

“It’s a very dynamic process,” said Superior Court Judge M. Karlynn Haberly. “There is a lot of humor, which tends to go away once you start the trial.”

“Voir dire is the first opportunity you get to talk to the jury panel,” said Port Orchard attorney Eric Fong. “You’re not trying to manipulate them. You need to be open and honest and let them get to know you. And you want to get to know them.

“People are suspicious from the time a lawyer walks into the courtroom,” he explained. “They know you have an agenda, to advocate a point of view. But you need to believe in what you’re doing. You can have the most eloquent words, but they’re useless if jury candidates think you’re lying.”

“You have to go with your gut,” said Port Orchard attorney David LaCross. “Many lawyers feel their cases are won or lost during jury selection.”

The purpose of the process is to identify prejudices among the jury pool. Some of the common biases include the idea that law enforcement is always right (or wrong), that a person will not be arrested unless they break the law, and the belief that anyone who won’t testify on their own behalf must be guilty.

Voir dire has been used in Washington since the 1980s. Before that, attorneys would question one potential juror at a time, starting with the first and working their way to the last. Voir dire is easier on everyone, since it allows attorneys to ask questions of the whole group and allow individuals to respond as they see fit.

The open-ended questioning process is dubbed the “Donahue Method.” While it could have been named after talk show host Phil Donahue’s practice of asking questions of his audience, the actual inventor was Spokane Judge Mike Donahue. Whatever its origin, the process is more efficient and less formal than what it replaced.

After addresses by both sides — which can each last an hour — attorneys exercise their challenges. Each side is allowed six preemptive challenges, disqualifying a juror for any reason at all. Challenges for “cause” are also allowed, if either side believes a certain candidate could not judge the case fairly.

After giving the initial instructions and asking baseline questions, the judge then turns over the voir dire process to the individual attorneys.

Prosecuting Attorney Russ Hauge said he doesn’t expect the judge to hang on every word, noting it’s the responsibility of the attorney to note when his or her adversary crosses the line and lodge an objection.

No matter how many times they’ve heard the same speech, the judges must still listen carefully. While some of them may sit in front of a laptop computer, they’re not checking their e-mail or catching up on busywork.

“The judges are always paying attention,” said Superior Court Judge Anna Laurie. “The laptop reflects the information typed in by the court reporter.”

Attorneys walk a thin line, attempting to determine juror bias while presenting portions of their case in order to suggest certain possible scenarios. During a recent bail-jumping trial, both sides evoked the recent movie “John Q,” which told the story of a distraught father who took over a hospital because it refused to treat his sick son. The core issue was how jurors would rule on a law they felt was unfair.

“We will object to any suggestions that a jury will nullify the law,” said Hauge. “We can’t prevent a jury from doing that and issuing a not-guilty verdict even if someone has broken the law. In those cases, we have no remedy because you cannot appeal a not-guilty verdict.”

It’s not hard to dodge jury duty. One can usually be excused by declaring any hardship. Neither side wants a reluctant juror or anyone with a strong bias. If a bias is proven after a verdict, it can be grounds for appeal.

Bailiffs, who witness the voir dire process several times a week, say they generally sound alike. Common themes emerge, including the importance of following the letter of the law, maintaining an open mind and the ability to sublimate biases if instructed to do so by the court.

Other factors that can get a juror excused are relationships with law enforcement officials, acquaintance with another juror or claustrophobia.

“This courtroom has no windows,” said Superior Judge Leonard Costello during a recent jury selection. “The jury room, where you will spend a lot of time, is considerably smaller. So anyone who would have trouble spending a lot of time in a small, windowless room should say so now.”

Hauge said the lawyers in his office are given free rein to conduct voir dire as they see fit. “We let them develop their own styles,” he said. 

And Haberly notices that attorneys “often tailor the facts they present to suit the particular case.”

At the end of voir dire, the attorneys exercise their challenges, directing their attention to those in the jury box.

Excused candidates are replaced by the candidate with the next sequential number. For this reason, it is unlikely anyone higher than 26 will get to serve — although a half dozen challenges for cause would modify this equation. Still, bailiffs say those with higher numbers are excused in most cases.

Both sides purport to seek the truth. Lawyers on both sides say they want to play fair and win the case on its merits. This can lead to an oft-quoted passage about how it is better to free 20 guilty men than imprison one innocent one.

“Voir dire is a way to ferret out prejudices and find people who are willing to follow the law,” said Port Orchard attorney Clayton Longacre. “But it won’t make any difference if the facts are against you.”

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