Anatomy of A Trial: Voir Dire: Attorney Tim Sledd Explains Jury Selection

Summary

Murder Sheet Podcast Episode Summary
Title: Anatomy of A Trial: Voir Dire: Attorney Tim Sledd Explains Jury Selection
Release Date: December 17, 2024

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Introduction to Voir Dire and Jury Selection

In this episode of Murder Sheet, hosts Áine Cain and Kevin Greenlee delve into the intricacies of jury selection through their guest, Attorney Tim Sledd, the Chief Public Defender in Lawrence County, Indiana. This episode is part of their new series, Anatomy of a Trial, which aims to unpack the various components that constitute a criminal trial.

Understanding Voir Dire

Kevin Greenlee begins the discussion by emphasizing that a trial is not a singular event but a series of critical stages, starting with jury selection. He states, “...some attorneys claim that a trial can be won or lost in the jury selection process...” [02:09]. Tim Sledd elaborates, explaining that voir dire is the process of jury selection and consists of selecting a jury pool from which the final jurors are chosen. He notes, “Voir dire is the process of jury selection... It happens at the front end of the trial” [04:19].

Importance of Jury Selection

Sledd underscores the pivotal role of jury selection, particularly from the defense perspective. He mentions, “It's the constitutional right to have a jury belongs to the defendant...” [09:25]. This highlights how the selection process can significantly influence the trial's outcome even before evidence is presented.

The Jury Pool Selection Process

Sledd outlines the methodology for creating the jury pool in Indiana, which involves public lists such as driver’s licenses, voter registrations, and property records. He explains, “That public list could be a Bureau of Motor Vehicles list... or it could be a voter registration logs... property ownership records can be used...” [05:34]. From this pool, individuals are selected to form the jury pool for specific cases.

Attorney Strategies in Selecting Jurors

When discussing strategies, Sledd emphasizes the importance of listening to jurors and asking the right questions to gauge their potential biases and openness. He states, “Whether or not a juror is on my side comes down to the questions. How responsive to my questions are they?” [11:59]. Additionally, he highlights the need to understand jurors' demographics and life experiences to make informed selections.

Challenges in Small Communities

Addressing the difficulties in smaller communities, Sledd acknowledges that overlapping social circles can complicate jury selection. However, he shares, “You’d still find that I really don't know him that well and I can put aside what I do know about that person” [23:10], indicating that with professional diligence, selecting an impartial jury is still feasible.

Removing Jurors: Cause vs. Peremptory Challenge

Sledd differentiates between removing jurors for cause and using peremptory challenges:

• For Cause: Grounds must be substantiated, such as bias or inability to comprehend the case. Example quote: “They have a burden to follow something like disqualification that the judge asked that they didn’t answer truthfully to” [36:22].
• Peremptory Challenge: Allows removal without stating a reason, though it cannot be based on race or other protected characteristics. Sledd warns against improper use, stating, “If you're a person of color and all of your peers are being eliminated peremptorily because they're of color themselves... that could be stacking the deck” [44:48].

Issues of Bias and Improper Use of Peremptory Challenges

The discussion touches on the ethical concerns surrounding peremptory challenges, especially regarding racial bias. Sledd references the Batson ruling, noting, “It's improper for the government to intentionally... hence, it's a race-related issue” [44:48]. He stresses that while implicit biases exist, deliberate misuse should be identifiable and addressed through legal channels.

Common Mistakes in Voir Dire

Sledd identifies the primary mistake attorneys make: not listening to jurors effectively. He states, “The biggest mistake lawyers make in voir dire is either trying to jam it down the veneer... or just missing what the person is saying to them” [48:26]. Effective jury selection requires attentiveness and the ability to interpret jurors' responses accurately.

Unusual Experiences During Jury Selection

Reflecting on his career, Sledd recounts a notable case where, despite thorough selection, a juror held a hidden bias that influenced the verdict. He explains, “...there was a not guilty verdict on count one... an alternate juror... was festering with anger...” [50:53]. This underscores the unpredictable nature of jury behavior and the challenges in ensuring complete impartiality.

Conclusion

The episode wraps up with a deeper understanding of voir dire and its significance in the trial process. Sledd emphasizes that while jury selection is crucial, the outcome of a trial hinges on multiple factors, including how well the attorneys present their cases to an open-minded jury.

Notable Quotes:

• Kevin Greenlee: “Some attorneys claim that a trial can be won or lost in the jury selection process...” [02:09].
• Tim Sledd: “Voir dire is the process of jury selection... It happens at the front end of the trial” [04:19].
• Tim Sledd: “It's the constitutional right to have a jury belongs to the defendant...” [09:25].
• Tim Sledd: “Whether or not a juror is on my side comes down to the questions...” [11:59].
• Tim Sledd: “The biggest mistake lawyers make in voir dire is either trying to jam it down the veneer... or just missing what the person is saying...” [48:26].

This comprehensive exploration by Murder Sheet provides valuable insights into the jury selection process, highlighting its complexities and the critical role it plays in the justice system.

Transcript

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[Kevin Greenlee]

About a criminal trial as if it was a single event, but of course, that's not entirely true. A trial is made up of multiple parts, starting with jury selection and going all the way to the delivery of a verdict. Not all of these stages of a trial always get attention, but each of them can be tremendously important. In fact, some attorneys claim that a trial can be won or lost in the jury selection process, and that is something that happens before any case whatsoever is actually made to that jury.

[Anya Cain]

But if you're not an attorney, it can get confusing trying to understand these stages of a trial and exactly why each is a crucial part of the process. That is why we have decided to launch a new occasional series we are calling Anatomy of a Trial. In each segment, we will talk to an experienced trial lawyer who will go in depth with us about a particular piece of a trial.

[Kevin Greenlee]

Our expert today is Tim Sled. Tim is the Chief Public Defender in Lawrence County, Indiana, and he's also one of the more popular guests we've had on this program. He has a Real gift for explaining things in an easy to understand way. It is always a pleasure to speak with him.

[Anya Cain]

We will be talking with Tim about voir dire, the process of jury selection. How are jurors picked? What kind of strategies do lawyers use when looking for jurors? And how do attorneys try to build a rapport with jurors even before opening statements are delivered? My name is Anya Cain.

[Kevin Greenlee]

I'm a journalist and I'm Kevin Greenlee. I'm an attorney.

[Anya Cain]

And this is the Murder Sheet.

[Kevin Greenlee]

We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases.

[Anya Cain]

We're the Murder Sheet and this is.

[Kevin Greenlee]

Anatomy of a Trial for our Dear attorney Tim Slett explains jury Selection Start with the obvious question, what is V?

[Tim Sled]

Okay, Voir deer is the process of jury selection. That's the easiest way to put it. There's two parts, two component parts of a trial that very few people get to see. Jury deliberation, that's secret, happens in a room. I've never seen jury deliberation. But the other thing that people rarely get to see is jury selection. And that happens at the front end of the trial. It's not secret. A person could come sit in a courtroom and watch jury selection, but it's also not something you're going to see on your live streams very often because jurors are afforded a or potential jurors are afforded a certain amount of respect and dignity before they get selected. We want jurors to feel confident and safe throughout the process so they are protected from being videoed or known by many people. In fact, mostly the lawyers get to know who they are by name and then when they're in Indiana, when you're in a courtroom selecting a jury, the jury, you don't get to refer to them by their name. You have to refer to them by a number that they've been assigned by the court.

[Kevin Greenlee]

How is the jury pool selected?

[Tim Sled]

So first the jury pool is it's in Indiana. It's. It's selected by a rule, a jury rule. And the Supreme Court of Indiana has authorized certain public lists to be utilized to create a jury pool. That public list could be a Bureau of Motor Vehicles list for people who have their driver's licenses to a certain geographic location. Or it could be a voter registration logs, property ownership records can be used to pool names and addresses. So that creates what's called the jury pool from the jury pool. Then courts and the clerk of the courts can select people that will be placed on a jury veneer and that can, that's a, it's a mass group of people from the jury pool that become a jury pond for a case. And then from the jury. Jury pond, you select the puddle. The actual, the actual, the actual jury for the case.

[Kevin Greenlee]

I'm curious, let's say hypothetically that Anya is a member of the jury pool. What sort of information would the attorneys on both sides have about Anya as she is a prospective juror?

[Tim Sled]

Court to court to court, gather different levels, quality and quantity of information from the jury pool to create the jury veneer. Typically, they're going to want to know that the questionnaire that goes out to folks from courts to determine whether or not these people are going to be on, on a jury veneer. It's going to want to know where they live, it's going to want to know what level of employment or type of employment they are, how long they've lived in the county, whether or not they have a criminal record, whether or not somebody in their family is involved in a present lawsuit or not. Have they served on a jury before? What's the degree of their education? Do they read and write English? Those sorts of questions. Because there are qualifications to be a juror, and those qualifications are what I would call like base qualifications that they're also controlled by a jury rule. In most jurisdictions in Indiana, to be on a jury, you have to be a United States citizen. You have to be an adult 18 or older. You have to be a resident of the county. You have to be able to read, speak and understand English. You can't be physically or mentally disabled in such a way that you wouldn't be able to perform the duty of a, of a juror. You can't be under a guardianship. And in criminal cases, you can't be a law enforcement officer. So those are automatic disqualifiers. Like the lawyers don't even necessarily need to get to asking you any questions. So the fir. To answer your question, Anya would fill out a questionnaire that gets mailed back to the court. So this is. We're going from the jury pool to a. The jury veneer. So sort of the jury pond. The jury pond, all of the, all of the participants in that pond. They, their questionnaires get handed to the lawyers in the case under seal, meaning with strict instructions on what can be done with them. Can't photocopy them, can't electronically copy them, can't disseminate them. We can share them with members of our staff, we can brainstorm about them, we can review them with Our clients, prosecutors can have law enforcement officers review them. So you can utilize tools to sort of say, do you know these people? What do you know about these people? Anything else on here that we should be concerned about? But those questionnaires then have to be turned back into the court. But the information on the, on those questionnaires is very basic and it typically gets to those base qualifications that are controlled by the Indiana jury Rule five, which is disqualification.

[Anya Cain]

Generally speaking. Why is jury selection and voir deer so important for the parties?

[Tim Sled]

So that this is one of the things that I, I find interesting that. So I've been a, I've been a trial lawyer for 20 years and then two years before that I worked with a. While I was in law school, I worked for a group of trial lawyers at the Federal Defenders. And throughout my, my experience as a trial where there's been different levels of, of significance placed on jury selection, all the way from lawyers who. Mentors of mine who have told me it's 12 rocks in a box, shake them up and see what you get down to. It's the most important part of your trial is picking the right jury. The older I've gotten, the more I lean to the latter than the former. As a prosecutor, I was very much aligned with the former. It's 12 jurors. Get them in there, let's present the facts, present the law, present the evidence. It's going to shake out. Being on the defense side, it's very important that the, the, to me that the, that the, the jury panel be largely people that I can select. Why is that important then, as was was your question? Right? I mean, it's the constitutional right to have a jury belongs to the defendant and it belongs to the defendant so that the allegations made by a government against an accused are being tested by a group of that person's peers. When that was created constitutionally, we lived in a much smaller society, a more agrarian society where your peers were really your peers and there were value judgments that your peers were going to be making based upon their knowledge of you or your family or your trade that, that are long gone now, but it's still important. The defense lawyer's job and the judge and the, and the prosecutor's job is still important to be picking a group of people that are going to be hearing these facts that are present, are willing, are engaged, are going to really wrestle with the issues, aren't going to make book cover judgments on, on very, very important issues because this is again, a constitutional service that they're providing to afford a constitutional right to a citizen who's been accused. And that's what every criminal defendant is guilty or innocent at the point of that trial, they are just an accused citizen and they have, they have that right.

[Anya Cain]

How do you read a prospective juror as far as when you're trying to determine this person might be somebody I want on the jury for my client?

[Tim Sled]

Great question. Because in different situations, there's different ways to read a prospective juror. There are courses on how to read body language. And, you know, I was trained at one conference on, you know, trying to. By the way people sit, by the way they answer questions, by the smirks and smiles that they give you. Are they, are they there? Are they on your side? And in the heat of a battle, in the heat of voir dire, it can be next to impossible for me to really be gathering that. And that's why having a second attorney at the table who's paying attention to body language and intonation is important. But we get to that primarily by way of questions. For those that haven't experienced voir dire, typically the judge controls the, the beginning of the process. So in a recent trial that I was involved in, we had two panels or two jury ponds of 60 from which to draw our ultimately 14 jurors that we were going to need 12 and two alternates. So we did an 8:30am to noon pool of 60 and then at 1:00 reconvene with a new pool. But that first group of 6012 got to sit in the jury box and then the remainder were out in the gallery. And we were only allowed to address, for questions purposes the 12 that are in there. So the judge starts off with the disqualification questions. Is any, raise your hand if you're not a US Citizen, Raise your hand if you can't. You don't understand what I'm saying right now. You know, raise your hand if you know you are under a guardianship. And then there, those are dealt with that way. Then after. In some jurisdictions, judges get to control much of Wadir. They lead with the questions and then the lawyers respond. In the county that I practice in, the judges usually ask those basic questions and then they turn it over to the state to ask questions. Then the defense gets to ask questions and then there's striking. So kind of zeroing in on into your question then is, how do I, how do I weigh a juror? Whether or not a juror is on my side or not comes down to the questions. How responsive to my questions are they? What are they saying you really have to listen. And that's a skill that I've had to develop over time is listening to the jurors versus wanting the jurors to listen to me. Really trying to flesh out understanding their demographic from the questionnaire, understanding their life experience that I can gain from the questionnaire and asking more about that. There's going to be certain professions that I'm. In some cases that I want jurors from. There's going to be certain professions that I don't want jurors from, you know, in different, depending upon the fact pattern, you know. So in a, in a fentanyl case, a dealing resulting in death case, I'm really interested based upon, in getting jurors that are able to understand the science, able to understand how we get different levels of toxicity. In other cases where it's, it's going to be more of a, a moralistic defense. I don't want engineers on my case. You know, they're very, somebody that's going to be able to write it. So I'm going to be. But the prosecutor may be just on the flip side. Let's say you got a, you've got a murder situation where you have two bad actors, but the, but one guy kills the other guy and they're. And so you end up in a, in a jury trial. Well, a prosecutor may say, I want an engineer here because I don't want my jury to be focusing on did this guy deserve to die? Was this the right guy to do it? You know, that's a not guilty and a murder. I want them to say, no, you can't, here's the rules, letter of the rules. Couldn't have happened. It doesn't matter about sort of all the moralistic or humanistic, sort of touchy feely stuff. It's, it's hard science. Whereas in a, in a fentanyl case, a prosecutor may say, I don't want any engineers and I don't want any scientists on this because I want somebody to say I feel bad because there's, there's a decedent, there's a victim of a, of an overdose who's dead. And I don't want somebody to be thinking about how they got there. It can vary based on the charge and the case. But how I get to know whether somebody's on my side is a lot by feedback of questions that I'm asking and then some body language hocus pocus that I'm not sure if there's really good empirical data on. But There's a lot of people that make money teaching jury consultation based upon eye contact posturing. Whether they cross their arms and lean back or whether their hands are on their knees and they lean forward, whether or not they're in Tis the season.

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[Anya Cain]

Have you mentioned the kind of battle of Wadira Is it typical in your experience that the defense or the prosecution walks away having like truly won voir dire or is it something that's often a little bit more ambiguous than that?

[Tim Sled]

I think it's, it's often very ambiguous. I have believed that I picked a great jury before and then to find out that the jury didn't much care for me, my case or my client. And I've often picked juries that I'm just like, oh, I don't like who's on this jury, I don't like who's on this jury and find out that they, you know, they were solidly open minded to the case that we were presenting. You can only do your best in jury selection and for my perspective is you can't believe that your case is won and lost in jury trial. It can be won and lost in jury trial, but you can't. There's so much to the actual trial that can. If you've picked a jury that is willing to keep their mind open to the end. And I think that that's, if the prosecution has a tough case, that's something they've got to make sure they get as a jury, that's going to keep their, their mind open to the end. Every defense case is a tough case. So every defense has to have, has to pick a jury that's not going to start from the foregone conclusion that he must have done something wrong if he's here. You know, you have to be able to eliminate people that are predisposed to that because you know, it's an uphill fight. But if you can start with keep your mind open, then you're lawyering throughout is, and then you know, your closing argument hopefully is the ribbon. But you're, you're lawyering throughout will, will draw them to either the lack of doubt if you're a prosecutor or the reasonable doubt if you're the defense lawyer.

[Kevin Greenlee]

You mentioned this process takes place by like asking the prospective jurors questions. Are there any limits as to what sorts of questions you're permitted to ask?

[Tim Sled]

Yes. In sex offense cases or child abuse cases, child molestation cases. The courts that I practice in, they require that there be individual voir dire with an individual questionnaire so that jurors don't have to get into embarrassing or painful topics in front of the group. So that's specifically, that's what jumps to my mind right away. And those happen in chambers then. So the, the judge will take the, the potential juror and the prosecutor and the defense lawyer into Chambers go through the questionnaires one by one by one and, and make sure that none of the questions that would be embarrassing or, you know, tragic or triggering happen in the courtroom. Other than that, there's a, there's a great amount of leeway given to lawyers to ask questions of jurors how it. But it needs to stay on track. The lawyer must be able to link the questions to some value that that juror will or won't provide to the case. You can go too far afield and the judge is in charge and controls that and can say, you know, back to questions that are important here for selecting the juror and the juror's qualification. But there are, there are constraints and limits, but they're very broad.

[Anya Cain]

In a smaller community, is it more difficult to find people who don't have any sort of connection to either the case itself or the parties involved?

[Tim Sled]

It can be. Specifically. Specifically, if you have a very large witness list of law enforcement officers. So in a small community that has, you know, let's say there's a county of 50,000 people and you have, if it's a traffic stop with some drugs on the scene, you got one police officer, maybe two police officers, and then passenger in the car and maybe maybe the driver of the car, that's not. You're probably going to be able to select a jury very quickly that doesn't know anybody. But if you have a murder case or a higher profile case where there's a crime scene that's protected for a couple days or a day by law enforcement officer, so you get a bunch of police officers that respond, police officers that preserve the scene, you have another inter degree of detectives that are doing interrogations, multiple witnesses, let's say, then it becomes more difficult because you create that the Kevin Bacon six degrees of separation. With all the more people. The standard isn't do I know somebody that was involved in the case? It's even if I know somebody was involved in the case, can I put aside my feelings for that person and listen to the facts and the evidence? Am I so swayed by this, my knowledge of this person that I believe that they're going to be. I'm going to value their testimony, their perspective more than somebody else's. That can be a way to then eliminate the person. If they, if they have that. That strong of a leaning, it can be different. But you'd be surprised. Even in a smaller community like Bedford that has, you know, 15,000 people in its city limits and 50,000 people in the county, rarely do we Run into a situation where we're like, oh, we may not get a jury because everybody knows, you know, Sheriff Day, you know, Sheriff Day's a well known man. You know, sheriffs by their very nature in Indiana are elected officials. So they've had campaign signs out and they probably hand shook just about in every neighborhood to get, to get the votes. But you'll still find that I really don't know him that well and I can put aside what I do know about that person, so I don't find it to be so difficult.

[Anya Cain]

And then just as a logistical question, how long does Wadir typically take or does it vary based on the needs of the case?

[Tim Sled]

It varies on the needs of the case and it varies on jurisdiction, even county to county. I have never done a jury trial in Marion County, Indiana, but I know several lawyers that have a lot and they almost, they call it speed dating. The judge gets to constrain jury selection by time. So a less significant case, let's say a misdemeanor case or a low level felony case, a judge can say, I'm going to give a total of 25 minutes for voir Deer to each side. Use your time wise. Go. Now. The jury rules say that a judge should allow for, generously allow for additional time if necessary and for good cause. But in a, you know, in a, in a simple battery case or a low level theft case, the issues are pretty, pretty straightforward. Lawyers should be able to address those issues quickly. Boil it down to, are we going to be able to get, pick a jury that can keep their mind open and then go with it. I like to have, and I've been blessed to practice in front of judges that let us have our time, you know, let us, let us flesh this out. Let us make the jurors comfortable. Because I think speed dating jurors makes the jurors uncomfortable too because, you know, there are many people who are coming into jury service are nervous, what am I going to be seeing? What am I going to be hearing? What's it going to feel like to have to think about passing judgment on a person? Or what's it going to think? What's it going to feel like to have to face police and say they didn't do a good job? All of those things can be hard for, you know, a librarian or a clerk, someplace that's under a subpoena to come into court to be a juror and they're like, this is a big important thing. I think Voir deer can be an opportunity to welcome them to this adversarial process with some grace. Typically, in Vadir, the prosecutor and the defense lawyer aren't going after each other hotly. You know, we are. It is. There is some dating to it where we are. You know, we're. We're courting the jurors to try to figure out who we want to date for the rest of the trial. So, you know, best foot forward. And, you know, even if we don't like the response of a juror, we're going to be super kind to that juror and throwing them out. You know, I mean, so there. There is. There is that, but I would. I prefer to have more time to work through the process.

[Anya Cain]

Sounds like it's the Bachelor, but very sad.

[Kevin Greenlee]

So you're, like, courting the jurors. You're trying to build rapport with them. What sort of things are you trying to do to make that happen?

[Tim Sled]

Often it depends on the type of case. In a small, rural red community in Indiana on a gun case, I may start off talking to these folks about guns and getting to know what their feelings are about guns and absolute second amendment right versus absolutely no guns. And as you get better at voir deer, you get better at letting them do the talking about it. And if you catch a juror that is answering the questions the way you want your jury to be thinking, you let that juror educate the jury. And then when your opposing party, whether it's a defense lawyer or a prosecutor, strikes that juror, they've. They've filled the pool with the knowledge that you wanted it to come from them. And then you can always, later, with a new panel, you can say, as that one juror said, you know, what do you think about that? What do you think about that? And positively indoctrinate the jury with that. So asking them questions, asking them to go deeper on an issue. Tell me more about that or questions that I like to ask and what do you think about this idea? You know, and let them. Let them get into it. And, you know, I. I very often am nervous before, you know, jury selection begins. Even though I'm a. I like to compete, and I love trying cases. I still get butterflies. And so I try to let them know right out the gate this is a big deal. And I'm nervous I might stammer or stutter over words. Forgive me. And so I try to. I try to take myself down to a level that they're able to appreciate my role and my task without thinking that I'm somebody who's, you know, Gone to so much school and has so much experience in here. And so I try to definitely bring myself to a level that I'm not intimidating to them. So that's one of, that's kind of how I court.

[Anya Cain]

Do you ever experience, you know, jurors or prospective jurors rather, who seem to be trying to get thrown out or is that a common thing or don't want to be there and sort of, how does that sort of play out typically?

[Tim Sled]

Sure, usually it happens pretty quickly. And during the judges portion of Wadir where they're trying to find people who are disqualified, you'll start to identify people right out of the gate that don't want to be there. Body language tells a lot. I mean huffing and puffing people like tapping their watch. You would be surprised really how unhappy people are to come in for jury service. It's relatively easy to get off of jury service. Often it's a phone call a few days beforehand where you say I, I have something going on and a judge will excuse you. But the day of when they come in and recognize that this is, it's going to happen, it's a real deal, people are unhappy. Ways that you. Common ways that people really strive to get off of jurors is being either on one side or the other of this fence. Can you pass judgment on somebody? You'll have people who have a religious proclivity of saying, I can't pass judgment on anybody. So I would not be fair to the prosecutor in this case because at the end of the day it's, it's for God alone, not for me to assign somebody's guilt or innocence. Almost always those folks are, if they're that married to that position, they're just wanting off of a jury. And then you get the other people that say, I believe if you've been arrested, you've done something wrong and I'm not going to, you know, you get, you get both ends of those and so you have to weed through those folks quite a bit. And they normally are very vocal and loud about it because they want out sooner than later. Especially if they're on the second or third panel. They've heard from the, they've. So they're like I said, there's a panel and then the puddle or the pond is still sitting out there and we're filling the panel with the pond. So as you go through rounds of strikes, people who are paying attention can say, oh, if I answer like number 12 did, 12 went home. So I'm gonna take 12's approach and people that one off will do that. And you'll see, you'll watch them, you know, parrot back what somebody who got struck said and you're like, okay, he didn't want to be here.

[Anya Cain]

Is there a flip side of that where some people seem too eager to get on the jury or is that not really as much of a problem?

[Tim Sled]

Yeah, there's a, that happens too. There's, there's a group of lawyers that have, that I admire that have always said that juries are very difficult to pick because sometimes you end up with people that weren't savvy enough to figure out how not to be on a jury. Or there were people that wanted to be on the jury so bad they got stuck on the jury. And neither one of those people are people that we really want to be picking to be on our jury. If you have somebody that's so interested and so intrigued and so wed to the position of wanting to be a juror, that's dangerous. I mean, they want to have that much control over the outcome of a case one way or the other. It's, that's dangerous. And the latter group is harder to siphon through. And they don't throw up as many flags because they're going to be saying, I can be fair, I can listen, I can be open minded. If they want to be on the jury, they know that they need to be able to sell themselves as somebody who should stay seated in that seat. So you're going to pick up on cues and red flags based upon, know things that they really can't shake themselves from because they don't know everything about the case yet. So if, if it's a gun case, like let's say a felon in possession of a firearm case, and they're, you know, second amendment proponents, you know, they're, you're going to get, you're going to get to that with a gun question and they're not going to know exactly what the gun question is about, but they may come out and be like, I kind of, I have one in my car right now and I'm an absolute gun owner. Well, the defense lawyer is going to be like, good. And the prosecutor is going to have to say, well, since you're a gun owner, you probably understand there's rules around guns. Tell us about that. I don't really think there should be. You should, everybody should have them.

[Kevin Greenlee]

Okay.

[Tim Sled]

Defense lawyer is going to want that. You know, that's, that's largely how we would work through that. Behind the bright lights and adrenaline of pro sport is an equally exciting world of negotiations and deal making.

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[Tim Sled]

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[Kevin Greenlee]

Is selected by removing people, and people can be removed for cause or as a result of a peremptory challenge. So what's the difference between removing someone for cause and removing them as a peremptory challenge?

[Tim Sled]

Yeah, so after the questions have been asked by the judge, the state and the defense lawyer, everybody kind of sits down and then the judge will have a strike sheet. So you have your, your panel, typically 12 people sitting in that, that juror jury box from which you get to strike. You can move, as you said, move to strike them for either cause or use a peremptory challenge. So a peremptory challenge is a challenge that you can strike somebody for no reason or any reason at all. You're not supposed to be able to strike for a racial bias or something like that. So there's, there's a Batson challenge that's a whole different, that's an, that's an improper peremptory challenge. So we're going to, we're going to stay with proper peremptory challenges. I didn't like the way that person looked at me. I didn't like their answer. I just got a bad gut feeling. I, I'm never, you know, somebody might say, I'm never going to put a chef on, you know, somebody that works with recipes. I don't, I'm, you know, you have lots of different reasons you can use peremptories. You are limited to the number of peremptory challenges. You can in different jurisdictions. It's a different quantity of peremptory challenges and some places it's different based upon whether this is a felony or a misdemeanor charge. But let's say you get 10 peremptory challenges. You kind of, you hold peremptories. You need to have studied your jury pool based upon your, the demographics. And then you need to be anticipating who's coming up if there's a strike because you got to know who you, who you're worried about on, in the jury pool. You need to know who you're worried about. And then if you're striking, how does that, how does the, how does your panel get fed from the people in the, in the, in the veneer. Cause strikes are very specific. They are contested and they are, you are striking this person because there is a known. They've said something that makes it so that they would not be a fair juror. Indiana has in its jury rules specific grounds for cause, such as, you know, some form of disqualification that the judge asked that they didn't answer truthfully to. But you, you bringing, you flesh it out into, through your, through selection. You, you flesh it out that they, they don't live in that county anymore. That, that you could strike them for cause that won't be contested too much. Another one is that they're going. They be unable to comprehend the evidence in some way, shape or form. They don't hear well. They've got an inability to, you come up with a learning disability where they're not going to be able to do the math that they need to do in a complex fraud, fraud case. You know, something along those lines. They've formed or expressed an opinion as to the outcome of the case prior to coming in, and they're married to it. That that's a for cause. In a, in a dealing resulting in death case that I tried, we had a juror that said it really wouldn't matter to that juror, potential juror, whether or not the state failed to Prove that the drugs that the guy dealt were what killed the victim. Okay. Which is an essential element of the crime. The guy said it doesn't matter. Did he deal her any drugs? That's good enough for me and it will be good enough for me even if the judge instructs me that it takes more than that. I don't want drug dealers down here. I don't want drug dealers doing this. Guilty struck for cause because, you know, that's not the law. They got to be able to follow the law. So there's other, I mean, there's, there's a list of four costs, but it typically is, is they are so biased in one way or another that they're not going to be able to render affair or they're so distracted. You know, I've, I've had, I've had jurors that say nothing. The judge asked me about physical or mental disabilities rang true to me then. But now that we've been sitting here for two hours, I have to pee every 15 minutes. And if I don't, I don't have control over it. So it's going to be distracting that I'm going to have to raise my hand and we're going to be taking recesses every 15 minutes for, I mean, a judge might say, you know, ask some more questions. But if that's true, cause them off. You don't have to use a peremptory. You don't have to burn a peremptory for that. So those are typically it. You know, you might find out the defendant has a pending criminal case. You know, that's not one of the disqualifying characters, but it definitely is one that a prosecutor can say, yeah, I'm, I'm adverse to this person. One courtroom over and they're going to be hearing my case here. That's not, that's not ripe or fair. During the voir dire process, there are breaks that happen, lunch breaks and whatnot. If a witness or a defendant has a conversation with a panel member, you know, that could be grounds for strikes. So there, there are different rules, but it's, it all comes down to fairness, prejudging ability to follow the court's instructions because the court, you, I understand you, you will be doing like instructions and how all of that goes. But that's really, the judge gets to lay the ground or ground rules for a trial and the jurors have to swear under an oath that they will abide by those rules. If, and one of the things I'm doing in, in Voir dire is finding out, is this juror going to be able to follow the rules? So prosecutors love and voir deer to say, we want a fair trial. Everybody wants a fair trial. And in one of my last trials, the prosecutor said that, and we want to. We want a jury that's going to be fair to the state. And when I got up for voir dire, I said, and that's absolutely wrong. State doesn't get a fair trial. You're going to be instructed from the judge that the state alone has the burden of proof, and they have a burden of proof beyond a reasonable doubt, that the defense doesn't have to present anything, doesn't have to speak, doesn't have to do anything, doesn't have to cross examine anybody. It's the state's burden alone. This is an unfair trial by design. And then I explain to them why that this is, you know, part of our gut. We go into a government lesson. Everybody understand, how do you feel about that? Can you tell and you know, in Vadiri, you know, your job as a juror is going to be testing the state's case. Can you tell the state that they failed their case if they don't prove beyond a reasonable doubt the guilt of the client? Can you tell the state they failed? Can you look the prosecutor in the face and say, I'm sorry, you failed? Hopefully I got a teacher on the jury panel and I can talk to them about how difficult it is to tell a student they fail. But you still have to do it, you know, and then you get that. You let that. Let that juror sort of educate the other jurors on, you know, this can be a difficult task, but we're here to. The judge's instructions are going to tell them they're here to grade the state's case. You get a juror, a potential juror that says, sometimes people fail their test. Pass, fail, test. At the highest level. This isn't pass, fail at an F. This is pass, fail at an A, somewhere greater than clear and convincing evidence. And then. And then you get each juror to tell you, look you in the face and say, I can tell that detective and that prosecutor that they didn't meet their burden if they don't do it. I can do that. I promise you that. It's a call back to closing argument. You can call that back. If they can't, if they're going to be like, no, I mean, it's got to be, you know, the burden of proof the state has to meet. If he probably did it. That's good enough. I can get. And if they say that I can get them for cause. Or if the. If you're the state, if you're a prosecutor and the jury says, man, you got to prove it beyond all doubt, not by a reasonable doubt, all doubt. I got it before I'm going to be able to convict somebody of a crime. I got to know nobody. There's no other way it could have happened. Well, that's not the burden. Burden is beyond a reasonable doubt, not beyond all doubt. And so the state's going to be like, listen, that person, judge, that person is predisposed against the state. We got to get rid of them for cause, not peremptory. Judge might ask him a couple cleanup questions. But. So that's how cause and peremptories happen. Was that clear?

[Anya Cain]

Absolutely. One thing you mentioned that I thought was interesting was like improper use of preemptory and sort of how there can be like racial bias and whatnot with that. And I was just curious, like, how can that manifest itself? What are the rules around that and how can that be uncovered? Because I imagine it can be subtle sometimes. And you know, well, preemptory, you're supposed to just be allowed to do it. So, yeah, I'm curious about that.

[Tim Sled]

Yeah. So as I mentioned before, I believe it's Batson is the case that it's a Supreme Court case that talks about it's improper for the government to intentionally. There's no other thing that comes to my mind right now except say, whitewash, which is it. Which is. It's intended to be a racial term. Because if you're a person of color and you're being tried by a jury of your peers and all of your peers are getting eliminated peremptorily and it's because they're of color themselves, then that's. That could be stacking the deck. And you've hit on something that's very, very difficult. How do. How does that get uncovered? Racial biases often aren't even intentional. Implicit. I think it's called implicit bias. I've taken a couple different surveys to measure for it, to help me measure what are my implicit biases. And it's often shocking. You know, growing up in an all white town in Indiana in the 80s and 90s and trying to be open minded and going to university and doing all of these things, there's still implicit biases that you have to. I have to combat. So how then in jury selection does it get fleshed out? It typically has to be Egregious. I mean, in my experience in reading, it has to be, you know, there were 12 people put in the box. Six were of color or, you know, of a, of a, of a minority class or of a particular demographic that's a protected class. The state burnt all their strikes on getting those folks out right away because I don't believe, and I've never experienced a prosecutor or a defense lawyer asking the, the straight up question, does the way this person look matter to you? And then, and then run with it. But it's, it's probably one of those things much like pornography is that you know it when you see it. And you need good, need good lawyers and good judges to be sensitive to it, because honestly, good prosecutors, that's not how they want to win. And good defense lawyers are interested in getting the best outcome and the fairest outcome for their client, but also are not going to be seeking to play that kind of a game. Though the restriction isn't on the defense lawyer. I mean, a defense lawyer might have every reason to strike the most privileged people who are on the jury pool to protect his client to get the better group of peers. I think it's really ignorant of me to say that that's not a problem that would still persist and still occur. I just think, I think more of, of my profession and the prosecutors in my profession than wanting to win that way. If that's, if that's the way you got to get it done, you're, you're, you're slack and you're shameful and you should, you should, you should reap some of the benefit of that. And, and, but it takes good defense lawyers to say, this is bad, this, there's batson happening here, and preserve it for an appeal. Make, make the, make the objection to the court. Any judge worth their salt will be like, I don't like how this is feeling and we don't need to try this case again. I mean, judges don't want to try cases twice their dockets are full enough. And if there's bats and stuff going on, they know they're going to have to.

[Anya Cain]

What is the biggest mistake that you see attorneys make in Voir Deer?

[Tim Sled]

Generally speaking, I think, not listening. Jurors want to tell you whether they like you or not. Jurors want to tell you whether or not they. I'm talking about the jurors that are ultimately fair, balanced and in the pocket for becoming a part of your panel. They want you to know who they are as it relates to your case. They Often don't want you to know who they are at all as. Who they are as people. You know, it's, this is scary to be under a microscope. Often people don't want their sins of, of thought to be exposed, and that happens in voir dear. So there's, there's some trepidation that they have with even, even talking. But if you listen, it's, it's more about listening. It's more about using that time to build some rapport credibility and begin to touch on your theme and theory of your case with them. But you're, you're not going to know whether or not your theme and theory of your case is going to have any sort of purchase with them unless you're listening to them talk it back. My goal is to have the prospective jury panel telling me my theme and theory without me having to tell them, so that when they start hearing it from me, in course of the opening, in course of the questioning, in course of cross examination, in course of my closing argument, you know, I'm almost open to them thinking they came up with it. I think the biggest mistake lawyers make in voir deer is either trying to jam it down the veneer, jam it down their throat, or just missing what the person is saying to them. You know, let's say you got, you have a science case and the, if you're the state, you don't want scientists on board, and you got somebody on there that says, oh, you know, one of my biggest hobbies is, you know, making beer, brewing beer. To. If you're not listening and you just hear beer, you might think, oh, this person likes to drink beer and watch football games. Brewing beer is scientific. I mean, there's, there's equations and stuff that go into that. And, and that's a hobby that a lot of people engage in. So if you miss that, you don't zero in on that, oh, is this a science person or not? You know, you might, you might keep somebody on that you ultimately would be bad for your case.

[Kevin Greenlee]

Looking back on your career, have you had any unusual or strange experiences during voir dire that stick out?

[Tim Sled]

Not so much as during voir dire that stick out during voir dire. I've had cases that the outcome happens, and I'm wondering how in the world did the outcome happen with that jury, given how voir dire went? And then you find out that the right question didn't get asked, or the person withheld information from the parties or the lawyers when they were asking it. Speaking specifically to a case that I Prosecuted, it was an attempted murder case, was the lead, the lead count. And then there were multiple counts of shooting into a dwelling, criminal recklessness, felon in possession of firearm. It was a very long trial. During jury selection, I wanted to know if there was anybody bias against the police. I was a prosecutor at the time. Everybody told me they weren't biased about the police, hadn't had any negative experiences with the police. I went through each one. I remember looking each one of them in the, in the eye, saying that they didn't have a bias or prejudice against police. And this is the, one of the clearest cut attempted murder cases on a police officer that I, that I could imagine. Uncontroverted evidence that the defendant came out of a doorway, had a shotgun, the policeman was behind a car. When he peeked out from behind the car, what he saw was the guy looking down the barrel of his shotgun and then bang, the shotgun goes off. Had it had buckshot in it, that policeman would have been dead. But it had a slug in it, and the slug whiffed by the, the police officer's head. The wadding, the packing of the, of the shotgun hit the policeman in the mouth and busted his lips. That's how close this to death this was. And then there were. There were tracking shots as the policeman retreated. The guy kept firing at him. So in my head to this day, there was adequate evidence to support an intention, you know, to kill that policeman that was unsuccessful. So it was an attempt to murder. I thought we were good to go. And we. There was a not guilty verdict on count one. Everything else guilty, including habitual felon, but, you know, not guilty on count one. So we go back and we talk to the jurors, and one of the alternate jurors in that case was just festering with anger because one juror had held out on that. And this, this alternate had, would have voted guilty and there would have been guilty on that. And so I asked the, the juror, the alternate pointed to who the, the juror was. And I said, tell me more about what, what the problem with count one was. Oh, you know, this specific one police officer, not the one that had been shot at, always picks on my son. And I don't trust anything they say.

[Anya Cain]

Is there any recourse when jury jurors lie like that?

[Tim Sled]

I mean, yes and no. So when it's to the benefit of the defendant, there's no recourse. The state doesn't get the recourse when it's to the detriment of the defendant. There's a process of going through and analyzing whether or not the jury was tainted, tampered with and addressing it that way. Thinking of like Alec Murdoch and his case and whether I don't know where that's at at this point, but I know at one point in time there was a clerk of court courts that may have a court reporter or somebody that may have been talking to jurors during cigarette breaks and making and they, so they were, I believe they were going to challenge whether or not the jury had been messed with sufficiently. So there, there, there can be a remedy that way. But ultimately in Indiana, where you would see it happen would be that that information would come out the defense if the defendant was negatively impacted, then there would be an ineffective assistance. A counsel claim made that the lawyer didn't do the right steps to find that juror. It's really the voir deer supposed to flesh that out. And so if you don't, it's on the lawyer in Indiana. But juror misconduct's a whole nother level of appeal process that would have to happen.

[Anya Cain]

We want to thank Tim so much for talking with us. It's always a pleasure and we really appreciate him sharing his insights with us.

[Kevin Greenlee]

Thanks so much for listening to the Murdersheet. If you have a tip concerning one of the cases we cover, please email [e-mail] if you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[Anya Cain]

If you're interested in joining our Patreon, that's available at wwpatreon.com murdersheet if you want to tip us a bit of money for records requests, you can do so at www. Buymeacoffee.com murdersheet we very much appreciate any support.

[Kevin Greenlee]

Special thanks to Kevin Tyler Greenlee who composed the music for the Murder Sheet and who you can find on the [e-mail] if you're looking to talk with.

[Anya Cain]

Other listeners about a case we've covered, you can join the Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening. So it's the holiday season right now and you might be looking for things to gift both your loved ones and perhaps yourself for some self care. And one thing we'd like you to keep in mind is we have a wonderful sponsor called Via Hemp. This is a company that Makes it possible for us to do our show. They support us and so supporting them also supports us. And they've got some really cool deals for Murder Sheet listeners who are interested. If you're 21 and older, you can go to viahemp.com that's V I I A H E M P Com, and you can get 15% off their products, which are these amazing premium, award winning THC and THC free gummies. They've also got things like topicals, drops, vapes. Each one of them is crafted with a specific mood or effect in mind.

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