Monday, August 22, 2011

"Busting" a jury panel

Tomorrow I am scheduled to start a trial in the 167th, though last-minute negotiations might end that. But I've been talking recently to colleagues and defense lawyers about something called a "busted panel." Actually, my friend Johnny Goudie was on a jury panel that got busted last week.

So here's what happens: 60 people come in for the voir dire process. They have to be qualified, so to speak, to sit on the jury. Those who cannot follow the law are excused "for cause" and the State and defense then get their ten peremptory (for any reason we like) strikes.

What do I mean by not being able to follow the law? Well, here are some examples we see are when panel members say:

-- "I understand that marijuana is illegal but, no matter the evidence, I will never convict anyone of a criminal offense related to possessing or using marijuana."
-- "I don't care how many thefts a person has committed, if someone steals a can of beer, I will never sentence him to prison."

The first will have the members struck because they can't follow the law and convict if the evidence proves possession, or use, of marijuana.
The second will also be struck because even though theft of a can of beer is not a prison-able offense, if the offender has two prior theft convictions the punishment range goes up to a felony (6 months to 2 years in state jail).

Sometimes defense lawyers will structure questions to try and bust the panel, to avoid having the trial. Some are good at it. I often wonder what they gain, though, as a trial will happen eventually, and if their client is in jail, what's the benefit?

I am almost certain that tomorrow's panel, should I go to trial, will not be busted. That's because the defense lawyer, Ray Espersen, is always ready to actually try the case, and because there are no complicated or controversial issues (like drugs!) to push people off kilter.

As my time in trial court comes to an end, I realize that it's appropriate I'm trying this against Ray. I've tried more cases to a jury against him than any other defense lawyer -- this will be my fourth. He keeps promising to do an entire voir dire in an English accent and he's just the guy to pull it off. Oh, and I'm sure you'd love to know who's won how many, but I'm not going to get into that here. All I'll say is, let's hope that he doesn't break his 'duck.'*

Happy Monday everyone.

*Cricket reference. Feel free to look it up on Google.


  1. I suspected that a scoring reference to a "duck" is the same as a reference to a "goose egg".


  2. So, do you think the concept of jury nullification is invalid? It would be interesting to hear your thoughts on the topic.

  3. Goose egg is correct. :)

    As for jury nullification. . . let me think about that. Great question, though.


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