Joel Jacobsen

Voir dire (the pronunciation is strictly a matter of geography - people in one place say it differently than those living a hundred miles away) means "speak the truth."  It's the tedious process of questioning prospective jurors in order to select a biased jury.

Of course, the party line is that the ritual is gone through for the purpose "of enabling the court to select an impartial jury", but no one with an interest in the outcome of a lawsuit truly wants an impartial jury, least of all a guilty murderer.  Voir dire is, in practice, one of the many barriers American judges raise against the conviction of the rich: defendants with money hire consultants whose job is to to predict how prospective jurors are likely to vote.  The ultimate goal is to assemble a biased jury - biased, that is, in one's favor.

In Placer County, near Sacramento, Judge Joseph O'Flaherty confronted what he considered a problem.  He had a black defendant in a county whose population was less than 1% black, resulting in a nearly all-white jury pool.  He also knew, from experience, that white jurors who admitted to racism in open court were subjected to hostility, which led him to believe closet Aryan Nation members were unlikely to out themselves on voir dire.  All well and good.

So how to identify the racists?  The judge hit upon a novel approach.  Here's a transcript of the judge instructing the panel members:

I don't want any racism in my court, which most of you know by now, but  I go a little further than that.

I recognize that most people in today's age don't want to raise their hand and say I am a bigot or I'm a racist.  So what I'm going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, I'm going to give you permission to lie.

Those italics were added by the California Commission on Judicial Performance, which as you may gather didn't like the judge's approach, publicly admonishing him.   (There was also a second, nearly identical incident.)  The public admonishment was enough to cause the Sacramento Bee to recommend the ouster of "Placer's renegade judge" in tomorrow's election.

I admit to being of two minds.  The judge's heart seems to have been in the right place.  But the Bee's high dudgeon has a certain appeal: "In a courtroom that requires the truth under oath, no matter how uncomfortable the truth may be, there is no room for lying."

O'Flaherty's point, I gather, was precisely that people who are racist are likely to lie about it, and that seems plausible.  The idea that you can get honest information out of people by singling them out of a large group and asking them straight questions ("Anyone here a dirt bag?  Can I see a show of hands?")  might very well be unrealistic.  Then again, the judge's idea that such people will consult their consciences and then tell a little white (or white-only) lie to avoid giving their racism concrete expression is also perhaps a tad fairy taleish.

More generally, there's plenty of room for lying in courtrooms.  As a rule of thumb, I'd say the percentage of criminal trials that involve deliberate untruths is, oh, somewhere in the range of, let's say ... 100%.  Mind you, that's just a rough guess. 

Cops lie sometimes, for reasons that will be the subject of a later post.  Some victims lie out of malice, others will describe their experience in ways that exhibit the strange knobby growths of obsession.  Guilty defendants who testify almost always lie.  Their buddies who testify that they were shooting pool together at the time of the murder, and they're sure of the times because they kept checking the clock over the bar that night - guess what?   Convicted defendants who stand before the judge to explain how sorry they are and how they've found God - well,  it's probably true sometimes.

But then, how about the lawyer - prosecutor or defense attorney, it doesn't matter - who predicts in opening statement what the evidence will show, and then it doesn't?  Or in closing argument ties all the strands together to tell a story that no one in the courtroom buys for a second?  Are they lying?  Or just not telling the truth?  (We lawyers would say neither, but to understand our reasons you'd have to listen to us some more.  See post 65.)

The chief project in the criminal law since 1961 has been to reduce the flow of information to the jury.  Lies of omission are so common in American jury trials that most lawyers and judges don't find anything remotely unusual about going to elaborate lengths to give jurors a false impression.  (See post 115.) 

And then there's the "consecrated lie" of the Supreme Court itself, claiming that voir dire is a device to seat an impartial jury.  And, speaking of which, do prospective jurors ever lie in order to get out of jury service?  (See post 98 and post 108.)   Here's a whole web page of excuses, with a link to more.  And let's not even get into the topic of Professor Anthony D'Amato's paper, "The Ultimate Injustice: When A Court Misstates the Facts."  (Ultimate?)

So while I think Judge O'Flaherty crossed a line, I don't think it's the line identified by the Bee.  It's more like shhhh, not so loud!

UPDATE (6/7/06):  The one thing we can all agree about is that O'Flaherty showed poor judgment, which one might consider a problematic failing in a judge, but he won his primary race pretty easily.