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Tuesday, April 25, 2006

Jurors as Questioners

Courts wrestle with jury questions

Some say they bog down, disrupt process in Kentucky
By Jason
The Courier-Journal

They were some of the most pointed questions serial rapist Bryce Bonner was asked when he took the stand during his trial late last month:
"Why did you admit to the rapes to police if you did not do it?"

"Why did you talk to police without first asking for an attorney?"

But they didn't come from the prosecution, defense attorney or the judge -- they came from the jury.

Once silent, jurors in some Jefferson County courtrooms are taking a more active role in criminal and civil trials. Some, however, say that can disrupt the process.

Jurors asked 69 questions during the Bonner trial before convicting him of raping and kidnapping two women and unlawfully imprisoning a third woman and her child. They recommended a sentence of 122 years in prison.

Foreman Penny Thielmeier said the questions helped jurors feel more comfortable about deciding Bonner's fate.

"Not being able to ask those questions would have left a lot of stones unturned," she said.

The questions "helped us prove it beyond a reasonable doubt."

But critics, including some judges, say a slew of questions from the jury can cause difficulties.

"Everybody becomes Perry Mason, and that becomes a problem because all you are doing is answering questions," most of them irrelevant, said Circuit Judge Geoffrey Morris, who doesn't tell jurors they are allowed to ask questions, but doesn't forbid them, either.

Unlike some states, Kentucky allows jurors to take notes and question witnesses in both civil and criminal proceedings, provided they submit the questions in writing to the judge after the prosecution and defense have finished with their questioning.

The judge then decides, with advice from attorneys, whether to allow them.
While five states ban jury questions in criminal trials, the rest leave the decision up to judges.

But most judges choose not to allow them, according to an ongoing study by the National Center for State Courts.

Only 15 percent of judges permitted jurors to write questions for witnesses in criminal trials, based on 8,200 returned questionnaires.

All 13 of Jefferson County's circuit judges say they permit written questions -- but to differing degrees. Some, like Morris and Lisabeth Hughes Abramson, don't encourage it.

Abramson said she once had a trial where one juror asked 40 to 50 questions.
"It slowed (the trial) down tremendously," she said. "And half of the questions were totally irrelevant."
Others, like Judge Judith McDonald-Burkman, who presided over the Bonner trial, tell jurors from the outset that they may question witnesses.
"It's better for a jury to have more information than not," McDonald-Burkman reasoned.
It was beneficial in the Bonner trial, said prosecutor Tom Van De Rostyne.

"On at least two occasions, they asked really good questions that the attorneys didn't ask that were highly relevant and very useful," he said, including one that questioned the defendant's alibi.
Juror questions in the Bonner case ranged from highly technical -- about DNA -- to highly nosey -- why a man in the court was handing notes to the defense attorney. The latter, among others, was rejected by the judge.
That's one of the problems, said defense attorney Steven Schroering.
"When the judge won't answer it, it makes the attorneys appear as if they are hiding something from the jurors," he said. "I don't like them (jury questions). I've never liked them.

"Sometimes they want to be lawyers or judges themselves, and that's not their role. Their role is just to listen to what is presented and make a determination based on that."

Even so, allowing jurors to take notes and ask questions slowly has been catching on around the country.

But the practice has largely been confined to civil trials.
Last summer, the American Bar Association published a list of 19 recommendations intended to promote more jury participation -- including allowing jurors to ask questions in civil trials.
But the bar couldn't agree on whether to push for jury questions in criminal cases because of concerns about slowing the process and turning jurors into lawyers, said Patricia Refo, a Phoenix attorney and chair of the American Jury Project for the bar association.
"I think allowing jurors to ask questions in any case is an important tool we should give to them," Refo said.

"They are being asked to make very important decisions. None of us would want to be put in the position of making an important decision without being able to ask a question."

Reporter Jason Riley can be reached at (502) 582-4727.