Busting the Panel


What do you get when you combine my friend (and fellow dinosaur) Norm, a federal drug case, 20 minutes of lawyer-conducted voir dire, and a 35-person jury panel?

Nothing even remotely resembling a jury. Come back and try again later. With 11 people disqualified for cause, that panel is not big enough. We’ll bring in 40 potential jurors tomorrow.

And oh, by the way, the court will do all of the voir dire itself.

Universally, judge-conducted voir dire stinks. A judge doesn’t have enough invested in either side of the case to zealously seek the truth from the panel; to the judge, for whom the record is everything, a jury that says all the right words is good enough. At one point today during the judge’s voir dire, after her honor (an otherwise excellent federal judge) had elicited from the panel the promise to set aside all of their manifold and manifest prejudices (which obviously didn’t merit much in-depth discussion) and “be fair” to our client, Norm passed me this note.

This will, if you’re keeping score at home, be the third time in eight days that we’ve gone to court to pick a jury on this case. As Percy Foreman is alleged to have said, “a continuance is as good as an acquittal . . . for as long as it lasts.”

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