A voir dire is the questioning of a persons who may to sit as a juror to determine whether reasons exist that the juror should not sit in judgment of a defendant in a particular case. A judge oversees the selection of a jury. Counsel for the state and the defendants have before them a questionnaire with written answers a juror provided about his or her background. Jurors are asked other questions by the judge. This exercise is supposed to ferret out any biases or prejudices that a person maintains so that those in the jury room will be as free of prejudices as possible and the jury an impartial arbiter of the facts in a case.
We saw back when the case against Whitey Bulger started that the jurors went through that exercise. We will see it again when the case against the Marathon Terrorist Attacker Dzhokhar Tsarnaev comes up. Even though Tsarnaev’s defense lawyers have said it is impossible for him to get a fair trial in Massachusetts, the federal judge believes that by using the voir dire system a fair jury will be assembled.
This week I have been writing about the case of Bernard F. Baran. He was convicted back in 1984 for raping and molesting children four-years-old and younger. Before the trial was started, the judge held a voir dire of the jury. Included in the voir dire Baran’s lawyer wanted the judge to ask whether “a witness’s homosexuality would cause them to believe the testimony of that witness any more or less, and whether they could be impartial on that basis.”
Any person who answered that the homosexuality would affect them would have been excluded from sitting on the case. Once a juror was impaneled unless something untoward happened it would be assumed the jury could render a fair and impartial opinion without regard to the sexual preference of the defendant. Just like it was assumed the jurors in Whitey’s case were not swayed by the multitude of publicity against him. Just like in the Tsarnaev case it will be assumed the jurors likewise are immune from outside factors.
How is it then that in the case of Bernard Baran that assumption did not hold? If such is the case, do we assume that the voir dire is an exercise in futility. Or, is the voir dire only supposed to prevent biased juries at those times when the court wants them to?
In the Appeals Court case that came down in 2009 granting Baran a new trial the court told us about happenings outside the courtroom in society at large that apparently did away with the safeguards promised by the voir dire exercise.
That court noted at the time the trial occurred homosexuality was criminalized in several states and it was routinely linked with “criminality, child molestation, indecency, deviance, pathology, uncontrolled urges, moral turpitude and pedophilia.” I’m not sure that is true, but regardless, even if it were the case wasn’t the protection of the voir dire such that it should not have been an issue. Can we expect the Federal Appeals Court to talk about the intensive pre-trial publicity against Whitey Bulger to suggest that might have a bearing on his appeal?
The Appeals Court also talked about “the HIV/AIDS epidemic” that had come about at the time. It talked about the fear it produced in the land and how those with the disease were ostracized. This was all true but it had no play into what was happening in the trial, or if it did, again the court was saying the voir dire did not guard against it.
If the voir dire did not safeguard against a biased jury, is the Appeals Court of a mind that it was impossible for any gay person to have received a fair trial back then. Is that court asking us to believe the judicial system was disabled from prosecuting gay men especially if charged with certain crimes such as molesting children. I pointed out how that has been argued by the Boston Globe and Harvey Silverglate, Baran’s attorney.
The quagmire that brings about is that if a gay man did molest young children there was no way in which he could have been brought to justice. We are to accept that the only responsible thing the DA in the Baran case could have done is to refuse to prosecute the case. He should have told the families who came to him telling them their children had been abused: “Sorry, I cannot prosecute a gay man considering the attitude at large in society.”
I’m not saying the Appeals Court was wrong in upholding Bernard Baran’s motion for a new trial. The numerous instances of error during the trial called out for that result. I am saying that part of its reasoning, an unnecessary part, damaged and undermined our belief the voir dire system is useful in producing an impartial jury.
Strangely, the most compelling reason for giving Baran a new trial the Appeals Court did not mention. It did mention the word “hysteria” when it spoke about HIV/AIDS. It should have mentioned the true hysteria of the times caused by the rash of sexual abuse cases involving preschool children. It didn’t do that because there were two such cases in Massachusetts. The Supreme Judicial Court had suggested the hysteria had nothing to do with their outcomes.
It is truly sad Bernard Baran spent so many years in prison. This was not because he was gay, for many straight men suffered likewise. This was because the terror of the times took a toll on courage and common sense. May such never be repeated.