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State v. Fortin2/3/2004
s given the nature of the Maine evidence, and whether you can give [defendant] a fair trial despite all you will hear about the Maine incident.
The two prosecutors representing the State, one of whom was a seasoned capital litigator, raised no objection to the proposed instruction, except to insist on the expansion of paragraph five to include language that defendant had bitten Trooper Gardner on the chin and breast, and that the trooper had suffered those bite marks, as well as injuries to her anus and vagina.
The trial court clearly was vexed that the attorneys had agreed to inquire about a subject that would consume additional time in selecting a jury, asking: "Gentlemen, do we really want to get a jury in this case?" The court stated that generally it would abide by an agreement of the parties on the need for a particular juror inquiry, but that its interpretation of State v. Manley, 54 N.J. 259 (1969), led it to foreclose any disclosure of defendant's sexual assault on Trooper Gardner. The court focused on Manley's call for "'an expedient selection of a fair and impartial jury,'" and its disapproval of the improper use of voir dire to give a favorable spin to a party's preferred view of legal principles and the facts. (Quoting id. at 280). The trial court expressed its concern that potential jurors might not be able to "keep an open mind" after hearing about "one isolated incident," the assault on Trooper Gardner, and feared that some jurors might say to themselves, "oh, my goodness." Evidently, the court believed that asking jurors, after disclosure of such a prior crime, "now can you be absolutely fair in this case?," was a pointless exercise. The trial court considered defendant's voir dire instruction to be "loading the deck," and refused to "put a layperson through having to in seconds make that determination, to assimilate all of that information in a vacuum and then say, well, that's not going to have any effect on me."
Throughout the jury selection process, defendant continued to press the court to give the proposed instruction, fearing that the nature of his crime against a female trooper in Maine would render some jurors incapable of returning a fair verdict, particularly those with law enforcement ties. After the trial court excused for cause four prospective jurors who could not remain fair and impartial given the nature of the charges in the Padilla case, the court denied another request by defense counsel for voir dire on the Maine crime. One potential juror, L.D., informed the court at sidebar that she had learned "all about the case," including the "female State Trooper in Maine," from newspaper reports. The court excused L.D. for cause sua sponte, because L.D. had formulated a "pretty good" opinion about the case. Afterwards, the court excused two prospective jurors who could not maintain their impartiality in light of the murder charges, and seven jurors whose law enforcement ties affected their ability to be fair.
Defendant renewed his voir dire request and expressed concern about shielding prospective jurors from evidence of the sexual assault against a "female State Trooper." Defendant inferred that if a number of jurors could not keep an open mind after hearing the nature of the charges regarding the Padilla murder, then others might similarly be affected if they knew of defendant's crime in Maine. Moreover, defendant was uncertain whether "anybody with a close connection to law enforcement" could sit impartially as a juror. Defense counsel urged the court to reconsider its position:
Once, again, I'm asking the court to please inform the jurors what they're going to hear from the State of Maine. So we have the ability to judge th
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