Mass. Lawyers Weekly: Judge asked to accelerate attorney voir dire for Hernandez trial

By:  December 15, 2014

Talk about a baptism by fire.

If Aaron Hernandez has his way, there will a high-profile audition of Massachusetts' new procedures for lawyer-conducted questioning of jurors.

In a  Friday (Dec. 12), counsel for the former New England Patriots tight end accused of murder asked Bristol Superior Court Judge E. Susan Garsh to allow attorney-conducted voir dire in the trial beginning on Jan. 9, even though the recently enacted state law expressly permitting the practice doesn't take effect until Feb. 2. Procedures governing lawyer-conducted voir dire are contained in a Superior Court standing order  and also aren't scheduled to take effect until Feb. 2.

Hernandez's lawyers - Michael K. Fee of Latham & Watkins and James L. Sultan and Charles W. Rankin of Rankin & Sultan - urge Garsh to exercise her discretion and permit the practice already allowed in a majority of states.

"[I]ndividual voir dire conducted by the Court may not be sufficient to identify potential jurors harboring latent biases or thrill-seekers who may want to be on this jury for their self-promotion or self-aggrandizement," the motion states. "Attorney-conducted individual voir dire is more ideally suited to identify latent bias or improper motivation. Further, such attorney-conducted, individual voir dire has now been expressly authorized by the Massachusetts Legislature, and its use in ... this case will not unduly burden the Court or unduly protract the jury selection process."

Again citing the potential for "stealth jurors," Hernandez  up to 30 peremptory challenges during jury selection, more than twice the number (12) that the Massachusetts Rules of Criminal Procedure provide in trials for crimes punishable by a life sentence. A motion on that request cites multiple examples of prospective jurors in high-profile trials lying "to become a juror thinking it will bring them fame or simply thrills."

"The widespread nature of the pre-trial publicity surrounding Hernandez's case and his status as a professional athlete for a local team will make it very difficult, even with an extensive and expanded voir dire, to empanel an impartial jury," the motion states. "Granting Hernandez additional peremptory challenges is one measure well within the Court's discretionary power that will help vindicate his constitutional rights."

Boston defense lawyer R. Bradford Bailey said he hopes and expects Garsh to approve the request for voir dire.

"This is a murder-one case, and since Judge Garsh knows the SJC has sanctioned this, I don't see any reason why she would stick to that timeframe," Bailey said, referring to the Feb. 2 effective date. "It's an issue of protecting all the defendant's rights. If that means accelerating the timeframe by 21 days to preserve his rights, I think every effort should be made to do that."

Bailey, a former state and federal prosecutor, said he doubts the Bristol County District Attorney's Office would risk an appeal by opposing the request. However, with regard to the extra peremptory challenges, he said he would expect the prosecution to argue that the number is statutorily set and there's no reason to deviate from it.

Garsh already has taken steps of her own to protect the integrity of the jury. She has ordered the impoundment of the juror questionnaire being circulated among the parties for comment. Garsh doesn't want the questionnaire to be publicized until all summonsed jurors have finished filling it out to prevent them from planning answers in advance. Garsh also is barring from the courtroom any gear that "displays any Patriots or other NFL team logo, football-related insignias, or words and/or a photograph that relate in any way to this case."

In another recent development in the case fast approaching trial, Garsh ruled last week that prosecutors won't be able to tell the jury about two other killings Hernandez is charged with in Suffolk County or the final text messages the victim, semi-professional football player Odin Lloyd, sent to his sister before his June 2013 death.