Exhaustive jury process has critics

800 potential jurors will be screened in trial of Stockton man

By Scott Smith - Recordnet.com

May 24, 2008

STOCKTON - William Jennings Choyce, a garbage man from Stockton charged with raping and murdering three prostitutes a decade ago, might not get a lot of sympathy if he ever argues that jury bias tainted his upcoming death penalty trial.

San Joaquin County Superior Court Judge Linda Lofthus has begun a rarely used method of selecting jurors in Choyce's case that receives criticism for taking a long time. But its supporters say it weeds out those who have already made up their mind on capital punishment before even coming to court.

Opening statements for the trial of Choyce, 54, aren't expected until mid-July. By then, the judge and attorneys will have culled through 800 potential jurors. Half of them will be called into the courtroom one at a time to answer 15 minutes worth of heart-to-heart questions.

Under the so-called Hovey voir dire, jurors undergo individual questioning without other jurors listening. They're asked to explain things such as their position on capital punishment, religious convictions and if they think a person can blame child abuse for adult behavior.

Questions could even delve into their own experiences as victims of child abuse or rape, or if they've struggled with alcoholism, drug abuse and mental illness, explained Angela Backers, a senior prosecutor in Alameda County who is not part of this case.

Backers knows the subject well. She lectures on jury selection nationally and heads a capital litigation committee for the California District Attorneys Association. She said in a phone interview that dark, personal topics are often woven into the fabric of death penalty cases.

"Those are things the attorneys have to know," said Backers, explaining the value of the extended jury selection. "But it's not fair to ask those things in front of 90 other jurors."

Those who don't like the deeply probing jury selection process argue that it takes too much time in California trial courts already bombarded with cases. Backers said it was used in all but one of the seven death penalty cases she prosecuted. These days, it is becoming rare.

Hovey voir dire was established in 1980 and was the standard until 1991, when California voters said it is up to trial court judges to decide if they would individually question jurors or question them in large groups.

Backers said the extended system allows a defense attorney to quickly pick out die-hard death penalty supporters, and it avoids copy-cat answers. Someone adamantly in favor of capital punishment is more likely to admit misgivings if they won't appear weak in front of a large group.

"There are people who are talking theoretically that they could do it," she said of choosing a death sentence. "I'm not talking theoretical. I'm talking about you looking a man in the eye and sending him to die."

In the Choyce case, 20 jurors a day for 20 days are scheduled to be called into Lofthus' courtroom.

One day this week, a bailiff ushered in a potential juror. He walked up to the jury box, sat down and admitted to Lofthus that he was "a little nervous." Lofthus sat at the bench to his right, and Choyce with his two attorneys sat at the large center table next to the prosecutor.

Answering Lofthus, the potential juror said his first reaction to hearing the charges against Choyce was "shock." He believes capital punishment is a deterrent to crime and said that his support of the death penalty is "pretty strong."

Lofthus excused the potential juror, who declined outside of court to give his name for this story.

Another potential juror answered that she believes childhood traumas lead some to do bad as adults although others don't. She couldn't explain why. She also described being raised Catholic and said that for a while she was a Jehovah's Witness. Now, she doesn't ascribe to a religious denomination.

Thomas Testa, the San Joaquin County prosecutor, asked her point-blank if she could vote for the death penalty if she heard all the evidence and found Choyce guilty.

"Can you come back to court and look him in the eye and say, 'Yep, I'm voting for the death penalty?' " Testa asked.

"If I find it is appropriate," she answered. "Yes."

Lofthus asked her to come back at a later date. The woman is not identified in this story because she could become a juror.

Testa outside of court said he thinks a fair jury can be seated even if potential jurors are questioned in a group. At a recent conference he attended for California prosecutors, no others said they were now on cases in which a judge used the longer method, Testa said.

Early in the Choyce case, Testa filed a motion opposing Lofthus' decision to use the extended jury selection method. Hovey voir dire can take longer than it takes to try the case, Testa said. That's why California voters decided to make it optional, Testa said.

While the time it takes can be frustrating, Testa said he can live with it. He credited Lofthus for her thoughtful decision to choose the less-common method.

"She agonized over it," Testa said. "I really have to applaud her for the effort she put into it."