This brief summary of the 04-22-13 court hearing addresses an alarming issue that apparently unfolded during JURY SELECTION (Voir Dire) in the JACKSON vs. AEG Trial . First, if you have questions about what “VOIR DIRE” is, and why it is such a crucial step in the entire Jury Trial process, you can first review the “VOIR DIRE” summary Blog that was provided on this website last week. That blog also defines “peremptory challenges” and “side-bar.”
On 04-22-13, Jury Selection was still in progress in the JACKSON vs. AEG Trial. As you know, a TeamMichaelJackson.com Representative has been attending the court hearings each day. For this hearing date, 04-22-13. It seems that something disturbing was possibly happening during Jury Selection.
At a point during Voir Dire in open court, attorney Panish requests a “side-bar” where he, the opposing attorney (Putnam), and the Judge conferred in private: outside the presence of the prospective jurors and the public. They conferred on the issue of Panish’s observation that Putnam was possibly using his “peremptory challenges” to ELIMINATE prospective jurors based on their RACIAL backgrounds, which is COMPLETELY ILLEGAL. In this situation, it involved African-American jurors. At side-bar, Panish brings his observation to the Judge’s attention AND provides legal cites/case laws that specifically address this very issue of attorneys possibly eliminating jurors on grounds that ARE ILLEGAL. (Commonly known in court as a “Wheeler Motion.”) Panish references the following case law cites: “Wheeler” and “Willis,” both of which are cases that, for various appellate reasons, were reviewed by the Court of Appeals and by the CALIFORNIA SUPREME COURT. On page one of these Transcripts, Panish raises his concerns about what he anticipates is about to happen regarding Putnam’s inappropriate use of peremptory challenges. The Judge confirms her knowledge of the case laws that Panish cites. A lengthy discussion about these cases and the related laws begins to unfold, with Putnam eventually TRYING to deny the “racial basis” accusation… this denial comes on later pages. Under “Willis,” the Judge indicates that there are two options to remedy this kind of issue: 1) Declare a Mistrial, or 2) Allow the (subject) Juror to remain. [instead of using the prospective juror’s name, we are designating him as the “subject juror.” He is the juror that Panish believes Putnam might eliminate, inappropriately and illegally, based upon his race; though Putnam will argue it is NOT based upon race] **Panish first acknowledges that, under “Wheeler,” the remedy is to declare a mistrial, which he doesn’t want… It is at this point that the case of “Willis” is raised regarding the two options indicated above, and Panish briefly summarizes why the “Willis” case could be applied to address the issue. Panish’s request is to allow the subject juror to remain… Panish briefly states the reason (and at which point) he could make the required legal showing to support his accusation against Putnam.
There is just further discussion about the “Willis” case law and why Panish wants to proceed by allowing the subject juror to remain so that, if necessary, based upon Putnam’s upcoming peremptory challenge behavior, Panish will have a legal remedy OTHER than asking to declare a mistrial. Also on this page, Panish indicates that there is NOTHING in the answers of the subject juror’s written questionnaire that Putnam can point to in support of eliminating that juror for demonstrated legitimate reasons- (& within legal parameters)… Putnam disagrees and says that the subject juror did give answers that raised potential concerns that show he could possibly be unfair to AEG’s side. Putnam specifies the subject juror’s written questionnaire answers
Next, there is further discussion about why Panish wants to reserve a possible remedy under “Willis.”
Putnam now advises the Judge of what HE considers to be potential red flags about the subject juror’s ability to be fair to the AEG side… But before outlining those reasons, Putnam suggests that the subject juror be taken out of the [jury] box, and replaced with another juror who is also an African-American Male. The Judge asks Putnam what his reasons are. Here are Putnam’s “reasons” for wanting to remove the subject juror:
–his answer in question #47 regarding contracts. We will not write what Putnam implies about that juror’s specific written answers here because we want to be careful. It’s in the Transcripts, which are public record unless sealed by Court Order, but we don’t want to engage in anything that might be considered questionable. Perhaps, what can be said is that, per Putnam, this juror answered the question about entering into contracts in such a way that possibly points to an inability to be fair to the AEG side, given the issues of this trial…
–his answers regarding his children. Here, it seems like Putnam was grasping at straws… But basically Putnam mentions a sport that this juror’s child plays or played, and Putnam tried to make a connection that implies this juror could somehow favor Panish in some sort of way…
Panish responds to Putnam’s “reasons” by pointing out that, from his understanding of this juror’s written questionnaire answers, it seems he is fairly neutral on some of the issues pertaining to contracts benefiting one side or another, entertainers, and celebrities…
Panish seems to be astonished that Putnam actually raises those particular issues about the juror’s children and “a sport” as some sort of legal grounds for eliminating him…
Panish reiterates the importance of why the subject juror needs to remain. He re-emphasizes how he needs to preserve a possible remedy under “Willis, against what he perceives to be Putnam’s racially-based juror elimination misbehavior- Panish wants to AVOID the “other” possible remedy of declaring a mistrial… (which would set the whole trial back because of having to START ALL OVER AGAIN with a new pool of prospective jurors who have not been part of this first jury selection process). Next, Panish, Putnam, and the Judge discuss the specific case of “People vs. Wheeler,” (and the issue of there being a demonstrated pattern of clearly racial reasons that an attorney has exhibited in his/her juror eliminations); Once again, Panish points out the “Willis” case because it offers the option of keeping the juror vs declaring a mistrial. Here, Panish highlights a summary of the “Willis” case history, where it happened, the troublesome outcome of striking juror after juror, the repeated MISTRIALS that kept resulting, and the remedies that the assigned Trial Court Judge eventually decided to utilize in the case… (which, for various other appellate reasons, were later reviewed and ruled upon by the Court of Appeal and the California Supreme Court)
Then Putnam indicates what he believes might have happened in the “Willis” case. But LATER, Putnam admits to NOT knowing the [Willis] case and how it hasn’t been brought to his attention before…
Again Panish points out the better remedy, the way to AVOID a mistrial under “Willis,” and he is simply asking for that chance to be preserved…
It appears that Putnam does not completely agree with Panish’s take on “Willis” and how to have the subject juror “remain” (it seems their discussions revolved around exactly “how” the juror is to “remain,” where the juror would be, and how to proceed with that juror “remaining” until the jury selection process is completed…)
So, at the end of this portion of “side-bar,” the Judge decides that she will take a closer look at the “Willis” case over the lunch break. And yet the Judge still indicates that she might need to excuse him [that juror]… ???
The Judge asks for a written copy of the “Willis” case law cite, which is provided to her by Panish. (27 CAL.4TH 811).
Panish makes another request to allow the subject juror to stay for now… The Judge decides that now is a good time to take a break so that she can delve further into the “Willis” case law during lunch. Panish indicates that’s fair…
*The Wheeler and Willis cases can be Googled if you would like to read complete information about them and their Court of Appeals/California Supreme Court outcomes.
This summary is a continuation of the 04-22-13 court hearing . It covers the portion of VOIR DIRE discussions in open court, commencing at 01:33p.m., after the Judge did further case law research over the lunch break: (There are NO jurors present at this time)
The Judge re-introduces the case law discussions that she and both attorneys, Panish and Putnam, had conducted at “side-bar” during the morning session. The Judge raises two other related cases/case law cites: “Baston” and “Phillips.” The Judge did further research over lunch. The Judge indicated that her question was whether or not a single peremptory challenge is enough or whether a pattern had to be established… It turns out that case law states it can be a single challenge.
The Judge reviews the elements of what the case law states on these issues:
–the Challenger (Plaintiff’s in this case) must demonstrate (from totality of all relevant facts), that there is an inference of discrimination [going on in juror elimination]
The Judge permits Panish to go first: Panish references the “Phillips” case law and he indicates that he went back to review the Transcripts of Putnam’s questioning of the subject juror. He gives the exact page numbers of said subject juror questioning.
Panish basically summarizes some of the questions that Putnam had asked the subject juror, covering issues of: what he did in his free time, his views on contracts, [then another juror happened to be questioned about professional athletes and contracts in the midst of Putnam questioning the subject juror]; then Panish returns to what Putnam was asking the subject juror: about his child/other male relative involved in a particular kind of “television” show.
THEN Panish indicates that, per the subject juror’s answers, there was no showing at all that this juror has any cause or that the subject juror was leaning one way or the other- but that it was his “race” that Putnam was singling him out for… Panish felt that he had clues that Putnam was going right for the subject juror, and again Panish cited what Putnam’s stated “reasons” were:
1) The issue of this juror’s “views” on contracts
2) Having a daughter… and Panish says almost every prospective juror has a daughter. Panish comments on how frivolous this particular “reason” of Putnam’s is…
3) A “sport” that this juror’s child plays or played… and how that indicates he could possibly favor Panish… Panish then points out that there has been no evidence shown whether he [Panish] did or did not play that same sport…
So Panish asserts that there is NO basis whatsoever for an actual legitimate challenge to the subject juror, that this juror answered “NO” on the questionnaire when asked if he had formed any “opinions” as a result of anything heard or seen [about the case], this juror seemed to have no unchangeable or strong opinions, this juror was pretty honest in the answers, BUT that Putnam had NOT spent hardly any time to actually develop any type of cause [against] this juror, as compared to the other jurors whom Putnam and/or co-counsel had questioned at length. Panish says only three questions were asked of the subject juror, that opposing counsel then went away from the juror and then came right back to him on peremptory: and Panish re-states his beliefs about Putnam’s reason: the juror’s race, and NOT the ones offered by Putnam.
The Judge allows Putnam to respond. Putnam points out the presumed constitutional status of a peremptory challenge unless it is shown [to be] otherwise [unconstitutional]. An attorney can exercise a peremptory challenge to eliminate a prospective juror WITHOUT stating the reason because the challenge is PRESUMED to be constitutional, because the attorneys are well aware that they are prohibited by law from attempting to eliminate a juror on grounds that are illegal. So it’s the expectation that all attorneys are acting in good legal faith in this process… And Putnam points out that a certain standard is in place that requires the opposing side to basically prove-up their “accusation” of impropriety to the Court, and then the Court (Judge) must rule on whether that standard to support the accusation has been legally met. So in this situation, if Panish proceeded with the accusation of improper behavior against Putnam, then Panish would have the burden to “prove it” to the Judge…
Then Putnam revisits the Transcript section of today’s hearing that covers where Panish says he didn’t have the basis [yet] for a challenge (or an accusation of improper behavior against Putnam). It seems like Putnam sort of describes it as more of a just-in-case type scenario that he believes Panish was pointing out.
Putnam is attempting to explain what he believes Panish was conveying this morning: that Panish didn’t actually have a basis to challenge Putnam’s peremptory challenge, YET. Putnam keeps trying to quote Panish from this morning. Putnam says he didn’t actually voluntarily give a basis for the elimination because under a peremptory, he doesn’t have to.
Then Putnam asks the Judge if a “prima facie case” [that required legal standard] has been shown by Panish that would REQUIRE Putnam to now state his basis for the subject juror’s elimination… (even though there was already discussion about Putnam pointing out the subject juror’s written questionnaire answers, so is Putnam now stating that those were not the grounds he actually wants to cite as his basis?) **Putnam asks if the “prima facie case” has been shown based upon the third or fourth [juror] that has been challenged is an African-American, he asks the Judge if THAT ENOUGH to show a “prima facie” case/challenge?
The Judge indicates again that the case law says only one challenge can be sufficient, in the absence of… ??? –there are dashes here in the Transcript so it seems like the Judge’s complete thought at this point might be missing, which can happen if two or more people were talking over each other so the Court reporter could not completely transcribe what each individual was saying. But this subject was covered earlier in the Transcript because it seems that the Judge was reiterating what case law requires… that it doesn’t necessarily take a “pattern” to be shown… (and can possibly be applied in this case if Panish proceeds with making the required showing that Putnam is improperly eliminating African-American jurors, in this particular situation)
Next, Putnam says something about Panish having the “Willis” case law cite all weekend and that he is trying to bring it in now for a challenge of some sort… it seems like Putnam is explaining why Panish seemed to be more readily familiar with this particular case law cite from earlier this morning, when Putnam admitted to not being familiar with it. Putnam mentions the RARE case where something is done regarding the [elimination] of the first person of any group, and that person is the ONLY person in the panel… “group” meaning a number of people who share a specific common characteristic, like racial background. He says this situation doesn’t apply because there is more than ONE African-American in the panel, and that there were others before. The Judge says there’s only one in the current panel of 12 [prospective jurors in the box for now]. Putnam says there are 2 in the 12.
The Judge and the attorneys review the ratio of African-American jurors. Putnam makes a point of one who has been kept through more than one round of strikes and for cause [eliminations] up to this point.
So Putnam asks the Judge again if there has been a “prima facie case” shown before he gets into the areas [of his grounds?] *The Judge declined the finding that there has been a prima facie showing. Putnam says thank you to the Judge.
The Judge tells Putnam that he does NOT have to give a further explanation.
**BUT the Judge does give Putnam A STRONG WARNING [that] if Putnam does exercise another challenge (that seems to target a juror based upon inappropriate grounds), there is a VERY STRONG LIKELIHOOD THAT THERE WILL BE A SUSTAINED BASTON MOTION OR A SUSTAINED WHEELER MOTION, and the remedy would be to have that juror remain. She might even give the Plaintiffs an extra challenge.
Putnam says OK, but seems to want assurances from the Judge that a prima facie showing process would still be required so that, if necessary, he could prove that any of his upcoming challenge (juror elimination) decisions are non-group based or non-bias based. The Judge indicates of course because it is what the law requires. **AND THEN THE JUDGE REPEATS HER STRONG ADMONITION TO PUTNAM THAT IF THERE IS ANOTHER (A SECOND) CHALLENGE OF THIS NATURE, then the Judge will take the attorneys through it all and she further indicates that IT IS HIGHLY LIKELY THAT IT MAY NOT BE IN [PUTNAM’S] FAVOR.
Next Panish reviews why he raised the “Willis” case: 1) Panish indicates that he has been aware of this case since 2002, and indicates that it has been used in many different cases where a defense counsel has improperly used challenges… 2) Again, Panish explains what the remedy was under “Willis” in terms of allowing the targeted juror/jurors to “remain.” Then the Judge comments on never having seen the process occur in the way Panish is describing. *And Panish continues to insist that it happens very often.
It seems that Putnam contradicts Panish and says that the Supreme Court does not say what Panish is saying about “Willis.” Next, Putnam gives a summary of what he believes the Supreme Court is saying in the “Willis” case law. It seems that Putnam is basically insisting that Panish is not applying the “Willis” case law correctly in this situation, and it seems Putnam is implying that what Panish is attempting to do is causing some form of prejudicial process to take place in this situation. Putnam indicates that this situation should not have been handled this way by Panish, and that somehow the jurors may have an inkling of what has been happening?? It concludes with the Judge saying no, the jurors do NOT know because these discussions have been taking place at side-bar, and that jurors could possibly only guess…
Towards the end, Putnam is GIVEN A VERY STRONG WARNING *NOT* TO ENGAGE IN WHAT IT APPEARS HE MIGHT HAVE BEEN DOING… HE WAS GIVEN THIS WARNING TWICE BY THE JUDGE.