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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowGiven that the purpose of voir dire is to determine whether prospective jurors can be fair and impartial, shouldn’t denying a defendant the opportunity to directly question them be recognized as a violation of their rights?
That’s one of many questions Indiana Supreme Court justices considered during Thursday oral arguments — the first time new Justice Derek Molter joined his new colleagues on the bench in the Supreme Court courtroom.
The new five-member court heard its first oral argument together Thursday morning. Arguments began at 11 a.m. in the case of Kyle Nicholas Doroszko v. State of Indiana, 21A-CR-1645, which was heard on petition to transfer.
The bench shifted to accommodate Molter, who took the spot to Chief Justice Loretta Rush’s immediate left — the spot always occupied by the newest justice. Until Thursday, Justice Christopher Goff had held that seat since he joined the court in 2017.
Molter succeeded now-Senior Judge Steven David, who retired at the end of last month.
David had been the longest-serving member of the court, meaning he sat to Rush’s immediate right, the spot reserved for the longest-serving justice who is not the chief. Now, that spot is held by Justice Mark Massa, who is the longest-serving justice by about eight months.
Goff and Justice Geoffrey Slaughter, who is the third-longest-serving justice, moved to new positions on the left and right ends of the bench, respectively. As chief, Rush — who is the second-longest-serving justice, behind Massa — retained her spot at the center of the bench.
In the Doroszko case, the St. Joseph Superior Court convicted Kyle Doroszko of Level 5 felony involuntary manslaughter after he shot a man during a drug deal gone wrong.
However, neither Doroszko nor his attorney had been permitted to directly question prospective jurors during voir dire. Instead, the court followed a policy in which the judge “ask(s) the voir dire,” but the parties were “welcome” to submit their own jury questions to the court and to “get up during voir dire to discuss” important issues.
The Court of Appeals of Indiana affirmed the conviction but noted that the trial court was wrong to deny Doroszko the opportunity to directly question the prospective jurors. Regardless, it concluded the error was harmless.
Clearly perplexed by the issues presented in the case, the high court began by questioning Doroszko’s appointed counsel, South Bend attorney Scott Howard Duerring.
Duerring requested that the justices grant transfer and reconcile conflicting holdings from Indiana’s appellate panels on the application of Indiana Trial Rule 47(D). He also argued that applying the harmless error doctrine when the trial court refuses to allow the parties to directly question prospective jurors “is an impossible standard to meet and will essentially render Trial Rule 47(D) toothless.”
Duerring answered affirmatively when Massa asked if the denial of the right to directly question jurors is the kind of structural error that should be per se reversible.
“Depending upon which analysis that you look at that is used by the court, you have a completely different outcome,” Duerring said. “In every case that I’ve read that deals with this issue, if the court uses a harmless error analysis, there’s no error. In every case that has used an analysis that’s different than that … that found it was fundamental error, they find a reversible error.”
Calling this an extreme example, Duerring said in his 40 years of practice, he’s never been in a courtroom that prevented him from directly asking questions of the prospective jurors.
“This interference in this particular case, I think, rises to constitutional dimensions because you have so little information,” he said, noting the jury remained silent during the entire proceeding and didn’t respond to the judge’s questions.
In his first question as a Supreme Court justice, Molter asked how Indiana Appellate Rule 66, the harmless error rule, played into the case.
“Is it your burden to show that the error was harmful? Or is it the state’s burden to show that the error was harmless?” Molter asked.
“Putting the burden on the person who is in my client’s seat I don’t think is appropriate when my client, through his attorney, had no control over the process that was foisted upon them,” Duerring replied.
Nicole Dongieux Wiggins, a deputy attorney general with the Indiana Attorney General’s Office, countered that while a defendant has a constitutional right to an impartial jury, he does not have a constitutional right to a particular voir dire procedure.
But Rush, a former trial court judge, pointed to the fact that when the trial judge asked questions of the prospective jurors, there was no response, making it hard to determine their thoughts.
“How do you know that there’s any kind of bias or prejudice when you have six or 12 people not answering anything?” she asked.
According to Wiggins, the defendant or party would have to make an offer of proof regarding a certain juror and/or the entire panel.
Molter questioned whether that circumstance could create a dilemma in which the more egregious the violation, the more difficult it would be to show the error was harmful.
“The less the judge allows, then the less insight counsel has in being able to analyze whether or not there’s a need for more inquiry,” he said.
Slaughter raised his eyebrows when Wiggins conceded that a violation of Trial Rule 47(D) occurred.
“Upon further consideration and consultation with (the Indiana Prosecuting Attorneys Council), the state cannot defend this trial court’s procedure,” she said.
That prompted Goff to express concern with what could have happened in the case had the defendant been permitted to ask questions directly.
“I’m left wondering, ‘What might have happened had counsel been able to do what they’re able to do in virtually every trial court in the state besides this one?’,” Goff, also a former trial court judge, said. “In a nutshell, if we’ve gotten through repeated violations of this rule, I mean, how long can we say it’s alright?”
Wiggins said that the case is an isolated issue and that there isn’t a widespread misinterpretation of Rule 47(D). After opining that the issues presented are equally harming the state, she requested that the high court deny transfer.
“If this court were to accept jurisdiction,” she continued, “the state asks that the court uphold the trial court’s discretion in regulating how attorneys conduct examination of jurors.”
“No, you conceded that it was error, so we wouldn’t be upholding necessarily the use of discretion,” Massa quickly interjected. “You conceded its error. You’re asking us to find it to be harmless.”
To that end, Wiggins offered that the state isn’t asking for anything outside of the COA’s opinion.
The high court will now consider whether to grant transfer. The full arguments can be watched online.
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