"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, February 22, 2007

Appellate Lessons

Well, the AG has decided to ask the en banc Court of Appeals to hear my bank robbery case which a three-judge panel reversed on Batson grounds. (See here for more on Batson generally and here's the opinion itself).

Without getting too much into the legal argument, which I will leave in the capable hands of the AG, I did find it curious that the majority panel decision referred to "the Commonwealth’s limited questioning on voir dire to reveal the jurors’ potential for bias."

The learned judges in the majority may have forgotten what it's like to try cases in the "real world." Many trial judges are very grudging about jury voir dire, and while they recognize they must give the defendant broader latitude, or risk reversal, they do not fear reversal (because it cannot happen) for summarily limiting the Commonwealth's voir dire.

It is often better to be quick with a few questions and get out, than to risk being cut off by the judge in front of the jury. Moreover, my philosophy is that voir dire questions are in many (not all) cases of limited use. I've found that the questions I asked in this case usually are sufficient to locate the "problem" jurors.

I like to let the defendant ask lots of intrusive questions, spend alot of time, and potentially irritate the jury, while using whatever information is produced to my own benefit.

I suppose, however, since two Court of Appeals judges think my brief questioning an important fact to mention in finding a Batson violation (implying what?-- that I didn't care to ask too many questions because I was already determined to be a racist meany and strike all the black jurors?), I will have to reconsider my practice.

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