When dozens of prospective jurors from DuPage County file into the courtroom of Judge Peter Dockery on Tuesday, they will be offered a level of privacy and anonymity that most jurors in other counties never have.
They will be questioned by the judge and lawyers about their views on subjects ranging from their choice of hobbies and reading material to their views on the death penalty. But each juror will be individually questioned in private. The relatives of the victims and the accused and the media will be barred from the proceedings–a practice that many legal experts say is clearly unconstitutional.
A trial is a public proceeding, and jury selection is part of the trial, practicing lawyers and legal scholars say.
DuPage officials say that judges have the discretion to close jury selection, and that they do so routinely in death penalty cases.
The coming trial before Dockery is no ordinary case. Those selected to serve as jurors will be deciding the fate of Lavern Ward, one of three people accused of the 1995 slayings of Debra Evans and her two young children in Addison. The attackers cut a nearly full-term fetus from Evans’ womb, and tried to kidnap the baby, who survived.
Another defendant, Jacqueline Annette Williams, was convicted and sentenced to death in March by a jury also selected in secret.
No one would argue that jury selection is one of, if not the most, important parts of a trial. Lawyers on both sides of the case have a clear interest in ensuring that prospective jurors answer questions honestly, without concerns about how observers might regard their answers and without the possibility of influencing other prospective jurors.
But outside of DuPage County, lawyers and judges manage to deal with these concerns in ways less extreme than shrouding themselves in secrecy.
“It’s my understanding that trials are open to the public,” said Lake County State’s Atty. Michael Waller, who has prosecuted many death-penalty cases. “It’s not appropriate to do it behind closed doors.”
Waller’s sentiment was echoed in private and public comments by other prosecutors and judges throughout northern Illinois.
“There’s some pressure on courts and lawyers to make jurors feel more comfortable, but nothing is gained in the long run by making parts of the trial secret,” said Winnebago County State’s Atty. Paul A. Logli. “The process is something the public should be able to see, either directly or through reporters’ accounts.”
Prospective jurors in capital cases in Lake, Cook, Winnebago and Kane Counties, and indeed most other counties, are afforded privacy in other ways, lawyers in those counties explained.
For example, jurors are referred to by number, not name, and their addresses are not disclosed in open court.
If questions of a personal or sensitive nature are posed, a juror might be taken into chambers to be quizzed privately–just on that one subject.
And if a juror is about to spill his guts about any pretrial publicity he has read or heard, that juror, too, would be taken into chambers so that his responses wouldn’t influence other prospective jurors.
The practice of secret jury selection in DuPage County has gone largely unnoticed because family members and defense lawyers rarely object. In a few instances, including one of the trials of Rolando Cruz, DuPage officials allowed the official court reporter to read a transcript of the day’s proceedings to anyone who was interested.
It was a cumbersome process, and one that cramped the style of most reporters, who are accustomed to walk freely in and out of courtrooms to check on certain stages of a case.
DuPage County Chief Judge Michael R. Galasso insisted the county had no blanket policy mandating that the questioning of potential jurors, called voir dire, be held behind closed doors in death penalty cases. But he defended the decisions of individuals judges, saying that jurists have the right to ensure a fair trial as they see fit.
“When a judge makes a determination (to conduct jury selection privately), it is to ensure that the defendant will have a fair trial,” Galasso said. Both sides can benefit, Galasso added, because there’s less of a risk that some members of the jury will be tainted by the responses of others.
Asked about the constitutional requirement that trials be public events, Galasso said: “The Constitution means a lot. But the judiciary should also be independent to protect a fair trial.”
Michael Wolfe, one of the prosecutors in the Ward case, added: “People are more inclined to speak honestly and comfortably when they’re by themselves.”
And at least one Chicago defense lawyer insisted that, constitutional questions aside, private jury selection is in a defendant’s best interest.
“It’s the best way to select the jury there is,” said Ronald Menaker, a veteran criminal defense lawyer who has litigated a number of high-profile criminal cases. “There’s a natural reluctance for people to answer questions honestly. Individual voir dire lets us analyze a prospective juror without them having inhibition. The presence of the press can have a very chilling effect.”
Jamie Carey, a professor of criminal law at Loyola University Chicago School of Law, said DuPage’s practice is outside the norm, but if a defendant doesn’t care, its not likely that an appellate court panel would reverse a verdict in a case where jury selection is held in private.
