As I work at my desk in my office today, I have the voir dire (jury selection) in the retrial of Ray Tensing livestreaming on one of my monitors. Some folks have called jury selection the most boring part of any trial, but it may very well be the most important, because from jury selection comes the group of local citizens who will decide the fate of the parties in the case and really decide what the conscience of the community is regarding the issue being tried. The Ray Tensing case is an excessive force case being tried in Cincinnati, Ohio this week. Tensing is the former University of Cincinnati police officer charged with one count of murder and one count of voluntary manslaughter in connection with the 2015 shooting death of Sam DuBose. The deadly encounter happened during an off-campus traffic stop. Tensing has said he fired his service weapon in self defense. The incident was captured by Tensing’s police-issued body-worn camera. A am watching the criminal trial of Mr. Tensing, who is being tried for on one count of murder and one count of voluntary manslaughter. There has already been a civil case that settled for money damages against the University of Cincinnati, Mr. Tensing’s employer at the time of the killing. It is being tried for a second time because the first trial ended in a mistrial. Watching voir dire or jury selection is helpful to me as a trial lawyer, not only in ideas of potential bias to explore but in hearing how a certain cross-section of our nation feels about jury trials in general. It is interesting that in Ohio, if a lawyer asks the Court to strike a juror for cause, meaning the juror has expressed so much bias about the issues and has stated he doesn’t think he could be fair on the case, the lawyer moves to strike the juror out loud in front of all the other jurors. For example, one juror who the judge struck for cause said in jury selection that he thought Mr. Tensing “deserved a medal” for shooting Mr. Dubose. No wonder why he was struck for cause. In Georgia, we don’t do it that way because of the fear that once the judge strikes one juror for cause, in front of all the other jurors, the rest of the jurors will figure out what to say to get off the jury and then pretty soon all the jurors are gone. So in Georgia we approach the bench and make these sort of motions to the judge at her bench.
Many of the folks in the Tensing jury panel have mentioned the concern and anxiety they had simply upon receiving a juror summons requiring them to be present in court for the jury selection of this case. They have expressed their bewilderment about whey they of all people in Cincinnati received a juror summons, why they have to be there, why they have to take time out of their jobs and lives to be there…in short, why them? Why me?
Interesting question, and with a recent opinion issued by the Supreme Court of Georgia, Ricks v. State, infra, regarding how a jury panel is composed, I thought it merited looking into the issue of jury composition a bit deeper. Georgia has a fairly new Jury Composition Rule that controls the manner in which Georgia citizens will be summoned for jury duty. For use in compiling official lists of potential jurors, the Jury Composition Act directs the Clerks Council to obtain voter registration records from the Secretary of State and driver’s license and identification card records from the Department of Driver Services (“DDS”); the Act also directs the Clerks Council to obtain records on individuals who are ineligible for jury service, including certain records regarding mentally incompetent persons and convicted felons who have not had their civil rights restored. See id. § 1-16 (codified as amended as OCGA § 15-12-40.1 (b), (c)). Ricks v. State, S17A0465, 2017 WL 2061675, (Ga. May 15, 2017)
The Supreme Court of Georgia adopted the Jury Composition Rule (“the Rule”) to effectuate the Jury Composition Reform Act of 2011 (“the Act”), Ga. L. 2011, p. 59. The Act was the product of a seven-year effort by this Court’s Jury Composition Committee, led by then-Justice Hugh P. Thompson, to develop recommended changes to OCGA § 15-12-40.1, related statutes, and the Unified Appeal Procedure used in death penalty cases in order to provide a modern method of preparing the lists from which local courts select grand juries and trial juries. Prior to the enactment of this rule, which became effective in 2013, each county utilized so-called “forced balancing” in an attempt to make its jury lists include men and women and certain identifiable racial groups in proportion to the county’s population as determined by the most recent decennial census. See Williams v. State, 287 Ga. 735, 735-736, 699 S.E.2d 25 (2010), superseded by the Act as noted in Ellington v. State, 292 Ga. 109, 118 n.2, 735 S.E.2d 736 (2012). In some counties with fast-changing demographics, the process left those proportions in the jury pool significantly out of line by the end of the decade. See id. at 738-741, 699 S.E.2d 25 (Melton, J., dissenting) (criticizing the disparities authorized by the old process). See also Fitch, supra, at 13-14, 16-18 (describing forced balancing and its problems). It was widely believed that the old way of “forced balancing” jury panels in Georgia was unconstitutional. The new Jury Composition Rule sought to eliminate that concern and bring the process of selecting jury panels into constitutional norms. In Ricks v. State, No. S17A0465 __ Ga. ___ ( May 15, 2017), a criminal defendant who was indicted for murder, armed robber, criminal street activity and other crimes was given notice by the State that the State intended to seek the death penalty in the case. Defense Counsel then filed a motion asking the Fulton County trial court to issue an order declaring the manner in which Fulton County selected trial jurors to be in violation of the new Georgia Jury Composition Rule. The trial judge denied the motion and the defendant appealed.
Testimony in evidentiary hearings showed that since 2012, the Clerks Council has provided Fulton County with a county master jury list of eligible jurors on July 1 of each year, and the Council’s executive director confirmed in his testimony that the Council has followed the Jury Composition Rule’s mandates, including removal of names based on data regarding felons and deceased persons and based on the counties’ exception lists; detection of duplicates using the detailed algorithm provided in the Rule; and detection of unusable or changed addresses through the National Change of Address database; however, rather than choosing venires from the county master jury list that the Clerks Council provides, as OCGA § 15-12-40.1 (g) directs, Fulton County produces its own jury list using a complicated process developed by its vendor based on outdated guidelines set forth in a local jury management order issued by the chief judge of the Superior Court of Fulton County. The evidence showed the private vendor hired by Fulton Co. would then use its own electronic method to strike numerous jurors who had similar enough names to other jurors who were known to live outside the county, or to be now incapacitated in some way or ineligible in Fulton County someway. Thus, this private electronic software vendor was taking the official juror list and removing names from it without any authority whatsoever. The Supreme Court ruled this to be inappropriate and that Fulton County had been, in fact, violating the Jury Composition Rule in the manner in which it summoned jurors for trial. For Mr. Ricks and others being tried in Fulton County, that means from today forward jury panels should have a more diverse representation. It means that a private software vendor cannot simply pick and choose which names from the official jury list to remove on a whim. This will restore integrity to our entire jury system, both in criminal and civil cases.
I don’t know how, and there was no discussion of how in the Ricks opinion, the capital defender, which is the defense team in Georgia that defends all criminal defendants against whom the death penalty is being sought, discovered this illegal method of removing names from the official jury lists in Fulton County was being done. That would make for an interesting story over cocktails for certain. But there is little doubt that after all the effort and time put in by various members of the Georgia Supreme Court, especially the former Chief Justice Hugh Thompson, into rewriting the jury composition law to ensure the jury panels were constitutional, they would not take the opportunity to protect the newly enacted law when it was first brought to the Court’s attention it was not being followed by Fulton County. Perhaps the real question here would be who in the Fulton County judicial administration thought it would be okay for their private vendor to redact the official jury list as only they saw fit? And perhaps an even more pressing question is why did the State attempt to defend this conduct?
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 28 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.