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State v. Biegenwald3/5/1987
he court asked most jurors what they recalled; it sought to determine from their answers whether they knew about more than one murder or about defendant's prior conviction. Nevertheless, the court ruled that it would not excuse anyone for cause unless the juror expressly stated that he or she could not be impartial. Defense counsel again moved for a mistrial, claiming that the voir dire conducted by the trial court was an insufficient basis on which to exercise challenges in a capital case.
About half of each panel was excused at the outset because persons could not serve for the four to six weeks that the trial court estimated the case would last. Ninety-five prospective jurors were questioned before the final sixteen-member jury was seated. Seven of these prospective jurors were excused, due to personal conflicts, before the court questioned the remaining jurors about what they read or heard about the case. Of the remaining eighty-eight who were questioned, forty-seven were exposed to significant pretrial publicity and recalled
specific details -- usually that there were several murders, that bodies were found buried in Staten Island or Monmouth County or that the defendant had a prior conviction. Thirty-five of the forty-seven were excused by the court because they said they could not render an impartial judgment in light of what they knew. Four of the remaining twelve were seated over defendant's challenges for cause based on their exposure to publicity. Every challenge for cause made by the defendant was denied.
On the fourth day of voir dire, Ellen Pisnoy, a prospective juror, said that prior to the trial court's instructions to the panel, potential jurors had discussed the fact that defendant was accused of several murders and the role of Mr. Fitzgerald, one of the State's main witnesses. Fifty jurors had been questioned prior to this revelation but none had mentioned discussions among potential jurors. The trial court's attempt to identify the jurors involved in these discussions consisted only of the same random questioning of prospective jurors on voir dire and general questioning of each juror about what was said, and by whom, among the waiting jurors. The fifty-fourth prospective juror, Michelle Hugo, confirmed during voir dire that even after the prospective jurors were seated, jurors were comparing recollections of newspaper accounts about how the defendant lured young women to go with him, how he had murdered them, and how he had been turned in by his friend.
Three potential jurors, Ruth Cooper, Elizabeth Megill, and Anne Ennis, revealed that they had given other prospective jurors details of defendant's other alleged crimes. Ms. Cooper was specially called for questioning immediately after Ms. Hugo identified her, but Ms. Megill and Ms. Ennis were called as their numbers were randomly drawn from the box. These jurors were asked to identify those to whom they spoke, but the
court's questioning did not reveal all jurors who were thus exposed to the extra-judicial publicity.
In all, nine persons who were exposed to significant pretrial publicity were seated with some members of the final jury before they were excused peremptorily by the defendant or State. That publicity was discussed extensively among prospective jurors, not all of whom were identified. One juror, Ms. Hugo, who knew nothing of the defendant before being called for jury duty but learned about several murders of young girls in courthouse discussions, served on defendant's jury. Before the last juror was seated, defense counsel exhausted all twenty peremptory challenges.
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