Persuasion Matters

Fifty Shades of Zumba: Jury selection in a prostitution trial

What do a local gym, Zumba, and prostitution have in common?

Apparently, a lot.

The names Mark Strong, Sr. and Alexis Wright have been tickling the the ears of local Kennebunk, Maine residents for quite some time now.  Strong, 57 years old, is accused of conspiring with Alexis Wright to use her Zumba fitness studio for prostitution. Wright allegedly kept very detailed records of more than 100 customers, including some well-known folks in the Kennebunk community– which is very small at 35 square miles and a population of around 11,000.  Can you even imagine the press and water-cooler gossip?

Wright is first to face trial and the process has been messy so far, to say the least.

Justice Nancy Mills wanted to shield prospective jurors from the press and public scrutiny, and opted to keep the proceedings behind closed doors. During jury selection, the venire panel would be faced with personal and potentially embarrassing questions about their views on pornography, prostitution, sex, adultery, etc.   The Portland Press Herald, however, was none too happy with her decision and filed a motion with the court to open jury selection to the public.

Justice Mills was faced with quite a quandary: should she maintain a safe environment for jurors by excluding the public from voir dire, or should she honor the public’s right to observe court proceedings?  She opted to deny the motion:

The voir dire will continue to be not open to the media and not open to the public.  … [M]y paramount concern in this case is that the state receives a fair trial and that Mr. Strong receives a fair trial in this case, and part of receiving a fair trial is that both parties are able to select a fair and impartial jury. I am concerned that the candor [of jurors] would be reduced and that the answers to the questions I asked and that the attorneys have requested to ask and been allowed to ask would be different [if voir dire were open to the public].

So, the press did what it often does: it filed an interlocutory appeal with the Maine Supreme Judicial Court.

The high court’s 6-1 ruling was issued a last week.  Chief Justice Leigh Saufley’s opinion stated:

The findings of the trial court reflect that the process barred the public, which includes the media, from voir dire based on the concern that juror candor would be reduced.  Although the trial court exercises substantial discretion over the mode ad conduct of voir dire, a generalized concern that juror candor might be reduced if voir dire is conducted in public is insufficient to Press-Enterprise to bar the public or media from the entirety of the process.

The higher court made its position quite clear: juror honesty and candor will take a back seat to the public’s right to watch the process.

However, there was one dissenting opinion by Justice Alexander, who stated:

The opinion primarily relied on by the Court, Presley v. Georgia, … does not hold that all voir dire, and particularly individual voir dire, must be seen and heard by the press and the public.  Here the record is inadequate to even tell us whether the voir dire at issue is general voir dire or individual voir dire.  Presley recognizes that there may be circumstances when voir dire must be conducted out of the public view and away from the public ear.

I’ve observed hundreds of jury selection proceedings, and I am adamant in my belief that jurors absolutely positively must feel safe before they will disclose the details of extremely personal or potentially socially unacceptable beliefs.  Will the remaining venire members participate as honestly and openly in the process once the gallery is full of media hounds?  Fortunately, the higher court did instruct the trial court to exercise “considerable discretion to prevent the dissemination of sensitive juror information.”

To the parties’ credit, the panel completed a ten-page written questionnaire before individual questioning began.  A must in sensitive cases, a written questionnaire helps flag jurors who may need to be questioned with greater sensitivity; it also helps identify jurors with more obvious bias.  In my review of the questionnaire, some queries certainly ranked high on the “uncomfortable” scale.  I mean, when is the last time you talked about your views of adultery, prostitution, sex, or pornography in a group of complete strangers, on the record, for the world to read?

I have faith that Justice Mills and trial counsel will do their best to create a safe environment for prospective jurors and treat their gifts of personal sharing with the utmost respect.  The question is whether jurors will trust them enough to disclose what’s truly in their hearts.

How do you encourage candid disclosure in open court?  Vote in our poll!  Inquiring minds want to know.



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