ATLANTA — Questions many would like to ask others if they only had the nerve: Why aren’t you wearing a mask? Are you vaccinated yet? Do you feel safe in crowds?
But during a trial, lawyers are routinely allowed to ask prospective jurors personal questions, such as whether they’ve been victims of a crime, their views on race, whether they trust the police, etc. Now, as jury trials in Georgia have resumed, lawyers want to ask potential jurors about their views on the coronavirus.
Dwight Thomas, a defense attorney in Decatur who is preparing to try a murder case in Rockdale County, wants jurors to pay attention to the testimony and not to who’s coughing in the courtroom.
“You want to know whether they have fears of being in a public setting that’s inside, not outside, and with people they don’t know and don’t know if they are vaccinated or not,” Thomas said.
“You don’t want them to be in fear and distracted,” he added. “It’s a legitimate question because we need jurors to focus on the trial, all the facts and the evidence, as well as the judge’s instructions. We need to know who’s eager to just hurry up and get out of the courthouse.”
In March, then-Chief Justice Harold Melton signed an order allowing the resumption of jury trials, which had been halted because of the pandemic. Clerks at many courthouses across the state have been calling in prospective jurors for trials in hopes of starting to address a mountainous backlog of cases.
Each judicial circuit is required to establish safety protocols to protect all those entering the courthouse.
Questions that have played out in the news since March 2020 are every bit as relevant in the courtroom. Defense lawyers in particular would like to know whether jurors trust the science or, more specifically, the government.
“Anti-vaxxers could be good for the defense because most of them don’t trust the government,” Atlanta criminal defense attorney Bruce Harvey said. “You always want to see if there are any anti-government feelings out there.”
Harvey recently tried a case in Houston County and filed a list of questions to be asked during jury selection.
Among them: Have you been tested for COVID-19 and what were the results? Are you vaccinated? Have you had COVID-19? Do you believe you’re more likely to contract the coronavirus by appearing in court? Are you willing to tell the court if you get symptoms or are exposed to someone with the virus during trial?
He also asked whether wearing a mask in public is something that should be a personal choice and, on a scale of 1 to 10, each juror’s level of fear regarding the pandemic.
“You just want to have a comfort level with the jury and gauge their level of comfort,” Harvey said. “These are unusual times.”
What about prosecutors?
While many defense attorneys want to address the issue head-on, some prosecutors may be tacking in a different direction.
“I would be hesitant to ask, directly, any question involving someone’s medical issues,” said Pete Skandalakis, head of the Prosecuting Attorneys Council of Georgia. “I just think it’s too personal.”
A way around it, Skandalakis said, is to ask prospective jurors if there is anything, medical or personal, that would keep them from giving their full attention to the case and being a fair and impartial juror. Then, any juror who raises his or her hand can be questioned about it outside the presence of the other jurors.
“Of course, there are some with such strong feelings about it they may just blurt out their thoughts during the questioning,” Skandalakis said.
Location, location, location
Denise de la Rue, a jury consultant, said she thinks probing questions about the coronavirus should be permitted. But whether it’s wise to do so may depend on where the trial is being held.
“In a more rural area where few people may be vaccinated, jurors will be looking at you and wonder why you even want to talk about it,” she said. “So many never thought it was a big problem to begin with and many think it’s gone now.”
In a more populous area, those types of questions could have more bearing, de la Rue said.
“In a place like Fulton County, it should be a more relevant concern to more people,” she said. “They’re not only more likely to be vaccinated, they’ve put more credibility in the COVID pandemic.”
Marietta lawyer Ashleigh Merchant had received permission from a Cobb County judge to ask COVID-related questions to prospective jurors in an upcoming sexual assault case. Those questions included whether they had fears of the virus, whether they’d had the virus, and whether they were vaccinated.
In the criminal case, prosecutors planned to introduce DNA evidence that had been identified through a novel and complicated software program, Merchant said. For this reason, a juror’s trust — or distrust — of science was highly relevant.
The questions were never asked, however, because the defendant decided to enter into a plea bargain before trial.
Still, Merchant said, she wants to ask prospective jurors questions about the pandemic during the October trial of Ryan Alexander Duke, who is charged in the murder of South Georgia beauty queen Tara Grinstead.
“This pandemic is something that has affected everyone and it’s also something that people have strong opinions about,” Merchant said. “It’s questions like these that get jurors talking. And that’s what we want.”
Story Filed By Cox Newspapers
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