The Risks of Open-Court Voir Dire Demonstrated in Second Theranos Fraud Trial
Law 360 reports on last week’s jury selection in the trial of former Theranos executive Ramesh “Sunny” Balwarni in a California federal court. Prospective jurors were questioned about the possible effects on their judgment from the recent jury conviction of Balwani’s cohort, Theranos CEO Elizabeth Holmes. After four hours of open court questioning of prospective jurors, the defense team moved to strike the entire venire panel and start all over with a fresh one. They argued that the jury pool had been tainted by prospective jurors who tried to recall aloud various news stories, documentaries, podcasts, and YouTube videos that mentioned Holmes’s trial and Theranos’s rapid rise and swift fall from grace in 2016. (One prospective juror said he may need to leave the trial to fight in Ukraine.). Defense counsel Jeffrey Coopersmith listed several statements made by jurors about the once high-flying startup and its top brass during their questioning—including comments by a prospective juror who repeatedly called the company a fraud. Coopersmith said those open court statements were so prejudicial that they tainted the pool of jurors listening and that the judge must dismiss the panel for Balwani to get a fair trial. U.S. District Court Edward Davila denied the motion.
Judge Closes Courtroom to Observers Midtrial—Murder Conviction Reversed
In People of Michigan v. Davis,the fiancée of the defendant was a gallery observer. On the second day of trial, she had a benign interaction with a juror. Once this was reported to the trial judge, he prohibited all courtroom observers from the rest of the trial except the victim’s mother. Although the trial court did not take any further action to effectuate this closure, the Michigan Supreme Court held that the unjustified closure violated defendant's public-trial right and constituted plain error requiring reversal.
Colorado Peremptory Strike Reform Delayed by District Attorneys
Pending in the current session of the legislature is Senate Bill 128. It was intended to improve how peremptory strikes are policed under the Batson doctrine. Specifically, the bill provides a list of presumptively invalid reasons for peremptory challenges, including:
- having prior contact with law enforcement officers;
- expressing distrust of law enforcement officers or a belief that law enforcement officers engage in racial profiling;
- having a close relationship with an individual who has been stopped, arrested, or convicted of a crime;
- residing in certain neighborhoods;
- having a child outside of marriage;
- receiving state benefits; or
- speaking English as a second language.
The bill would also require appellate courts to hear peremptory challenge cases de novo and review a trial court's factual findings for substantial evidence. The Journal reports the sponsor of SB 128 has withdrawn the bill from consideration indefinitely because of failure to reach a compromise with the Colorado District Attorneys’ Council.
Michigan Governor Kidnapping Case Postponed Due to Unspecified COVID-19 Infection
The trial of four men accused of plotting to kidnap Governor Gretchen Whitmer has been underway in Grand Rapids since last week. However, the Detroit News reports Chief U.S. District Court Judge Robert Jonker has postponed the trial because an “essential trial participant” has tested positive for the coronavirus. The newspaper said, “Few prospective jurors wore the protective gear during jury selection last week and almost nobody wore masks during the first three days of trial.”
Questioning About Prior Sexual Abuse—A Jury Selection No-No?
An op-ed piece by former N.Y. state and federal prosecutor Tali Farhadian Weinstein appeared yesterday in the New York Times ($). He criticizes a question directed to prospective jurors in the Ghislaine Maxwell trial. As noted in a previous issue of the Jur-E Bulletin, Maxwell’s lawyers are seeking a reversal of her conviction because one juror did not answer this question in the affirmative, “Have you or a friend or a family member ever been the victim of sexual harassment, sexual abuse, or sexual assault?” Days after verdict was delivered, the court discovered the juror told his fellow deliberating jurors about his own victimization. Consequently, the judge questioned the subject juror about his failure answer that question affirmatively. The author asserts the standard voir dire question unnecessarily causes humiliation and disrespect of a juror. Weinstein suggests a better line of questioning. Readers might try to come up with additional better questions also.