Jury selection in Md. needs improvement

Posted: 7:22 pm Mon, November 30, 2009
By marylandreporter.com
Special to The Daily Record

Maryland courts don’t do a very good job of selecting unbiased jurors, but the process followed in selecting the jury for the trial of Baltimore Mayor Sheila Dixon was much better than usual, according to a consultant who worked for the prosecutors in that case.

While Maryland judges often dominate the process, lawyers for both the prosecution and the defense had many opportunities to question potential jurors in Dixon’s case, said Ronald Matlon, a longtime consultant who is executive director of the Timonium-based American Society of Trial Consultants.

He said jury selection in the Dixon trial was “substantially different” and used “an extremely uncommon approach” for a Maryland trial, but the state could do better as a whole.

“I don’t think Maryland is doing a very good job in uncovering juror bias,” Matlon said.

Matlon, former chairman of the mass communications department at Towson University, would not discuss details of the Dixon case beyond comparing the process for jury selection to practices in other Maryland courts and elsewhere in the country.

Overall, the attorneys for both prosecution and defense at Dixon’s trial had a lot more information about prospective jurors than is typical in Maryland.

Among the differences in Dixon’s trial:

(bullet) The attorneys had access to questionnaires filled out by members of the jury pool. This happens in less than 10 percent of Maryland jury trials, according to a 2007 survey for the Center for Jury Studies at the National Center for State Courts. Maryland judges often turn down requests for such questionnaires.

(bullet) After a series of questions in open court, individual members of the jury pool were questioned at the judge’s bench, and attorneys for both sides were allowed to ask follow-up questions. Judges get the sole ability to question jurors in Maryland more often than in 44 other states, although attorneys are able to question jurors more than half the time here. Behavioral studies have found that prospective jurors tend to be more honest when responding to attorneys.
(bullet) In the Dixon case, jury selection took nearly two days. In half of the more than 1,000 criminal jury trials held in Maryland each year, it takes less than 90 minutes to pick a jury. In 94 percent of Maryland cases, selection is finished in less than three hours.

(bullet) The visiting judge presiding in the Dixon case, Dennis M. Sweeney, is an acknowledged expert on jury selection issues. He was head of the Council on Jury Use and Management, an advisory committee to the state courts system, and has trained other judges about jury trials.

Matlon said the process is better when lawyers know more about the jurors they are considering, because both sides can look for bias.

“You don’t select a jury; you deselect jurors. You try to remove them,” he said. “In Maryland, the information you get is extremely limited.”

Towson attorney Margaret Fonshell Ward said she has encountered situations where she knows a minimal amount about the jury’s background.

“I have tried many, many cases that I have people end up on the jury and I have nothing but name, age, education and employment,” she said.

Ward, who has presented on jury issues with Sweeney, said the use of questionnaires is still “very unusual.” She has asked judges to use them in five civil cases and been turned down every time.

Matlon believes the use of an extended questionnaire filled out in private elicits better and more reliable information than questions asked by a judge in open court.

“In other states, the attorneys frequently run the show, and it is permissible for them to address a much broader range of issues,” Ward said. More personal questions about a prospective juror’s experiences, attitudes and beliefs “would be allowable in other jurisdictions,” but most likely not in Maryland.

She said attorneys in other states “are typically flabbergasted at what happens in Maryland.”

Without more information about jurors, Matlon and Ward said, attorneys must rely on demographic stereotypes about people of a certain age, level of education or occupation to make judgments about whom to exclude.

“If a juror wants to hide a bias from you, you’re really going to have a hard time finding that,” said Greg Hurley, a defense attorney who is now an analyst for the Center for Jury Studies in Williamsburg, Va. “You never have a complete picture of a person, and you get some facts, and decide whether you want them on a jury or not.”

Judges in robes asking questions from the bench tend to be intimidating, and the jurors are anxious to please them, pledging that they can truly be impartial and unbiased.

“Empirical studies have shown that jurors feel able to be more candid with a lawyer than a judge,” said Greg Mize, a retired judge from the D.C. Superior Court who has led the jury program for the National Center for the Courts.

Surveys of all 50 states and the District of Columbia conducted in 2007 by Mize’s program show Maryland grouped with the least progressive states on certain jury selection practices, particularly the lack of questionnaires and the amount of control by the judge.

But in other aspects of jury trials, Maryland ranks in the top tier of states, allowing jurors to take notes, giving them note-taking materials, and providing jury instructions on the law before closing arguments. It hurts the state’s rating that judges don’t always provide instruction for deliberation in writing, as Sweeney did in the Dixon trial.