Juries are starting to speak up

Kim Smith

Monday, May 15, 2000 | 11:10 a.m.

When Henderson resident Norm Peterson served as a juror 20 years ago, he didn't like it. It was different this time around, though.

This time, Peterson got to ask questions of those who took the stand.

Peterson was one of the jurors who last week sentenced Kevin Camp to life in prison. He and the others had convicted Camp of beating a 2-year-old to death.

Camp was convicted after several days of testimony, some of which was prompted by questions Peterson and the others had asked of the witnesses.

Had Camp been tried in any other Clark County courtroom, Peterson would not have had the opportunity to ask questions. But Camp was tried in District Judge Mark Gibbons' courtroom.

Gibbons has been allowing jurors to ask questions ever since he heard about the practice at a judicial college he attended shortly after he took the bench in January 1997.

At the college, Gibbons said, he learned that more and more juries across the United States are being allowed to ask questions, with Arizona and Oklahoma leading the charge.

In fact, Gibbons started the practice while the Nevada Supreme Court was still hearing arguments about whether it violated the rights of defendants. The court ultimately ruled in September 1998 that it is a good practice, but Gibbons appears to be the only District Court judge in Southern Nevada who has adopted the practice.

If jurors have questions, they write them down and give them to a bailiff to hand to the judge. Once the judge reads it, he confers with the attorneys for both sides, either at the bench or in chambers. If either one of the attorneys objects to the question, it isn't asked.

"I think jurors love it," Gibbons said. "The purpose of a trial is to get to the truth of the matter, to get all of the facts on the table and sometimes the attorneys don't do that. My idea is to search for the truth and to not let one side or the other manage the evidence."

Besides, jurors who can ask questions may also be paying more attention, Gibbons said. The attorneys may also get a better idea of what the jurors are thinking.

Not all of the attorneys who appear before him like the practice, Gibbons said. Most of them are defense attorneys who have strategies planned and worry a jury may inadvertently mess it up.

But Gibbons said 90 to 95 percent of the questions asked are not objected to. The one question that cannot be answered and is the most popular question asked during criminal trials is, "Does the defendant have a past criminal history?"

It can't be answered because it would prejudice the jury against the defendant.

"Most of the questions are fact issues, and the lawyers are glad to clarify those issues before it's too late," Gibbons said. "Everybody wants the jurors to go into deliberations with the right facts."

"In this case it worked out well," said Deputy District Attorney Gerald Gardner. "There's always a concern that a juror will ask a question and create an inference, but in this case they asked good questions. So often jurors will deliberate for several hours over trivial matters that they wish they could have asked."

Defense attorney John Fadgen, who has been a lawyer for 35 years, strongly disapproves of the practice.

"I don't like it," he said. "The state puts on their case, and you put on yours, and that should be it. It's like having an additional participant in the trial. Actually, it's like having up to 14 participants in the trial with alternate jurors."

If either side forgets to put on some evidence, so be it, Fadgen said.

"Our system has worked well the past couple of hundred years, and I don't want anyone interfering with my case," Fadgen said. "I have enough dealing with judges and prosecutors."

Besides, Fadgen said, if you allow jurors to ask questions, then they'll soon be cross-examining witnesses, visiting crime scenes and researching dictionaries and almanacs.

Lew Wolfbrandt, another defense attorney, doesn't like the idea either.

"When they write a question and then it's not asked, how do you ensure that they're not discussing it during deliberations?" Wolfbrandt said. "How do you ensure they're not filling in the blanks or speculating?"

There's also the risk that a jury may hold a grudge against the attorney who voiced the objection, Wolfbrandt said.

Wolfbrandt said he can see the merit in trying to get jurors more involved in the process, but at the same time it would be too easy for jurors to take on the role of prosecutors.

Chip Siegel is one defense attorney who likes jury participation and has seen it in action in Gibbons' courtroom.

"It's been approved by the Nevada Supreme Court and that tempers the discussion because it's allowable. But I like the way Judge Gibbons does it," Siegel said. "If either side objects, he doesn't push it."

As for jurors punishing an attorney and his client for objecting to a question, Siegel said if an attorney is careful, the jurors won't be able to tell who has objected.

"Don't show them what you're thinking at the bench," Siegel said. "Show them with your body language 'That's a great question Your Honor' while saying 'I'll go through the roof if you ask that question.' "

Attorneys sometimes think of themselves as "geniuses" and yet jurors can ask a question that can change an attorney's strategy, Siegel said. Or it can remind them of a crucial fact that has become obvious to them over time, but may not be so obvious to someone else.

"If I've been living a case for six months, I'll have gone over it 100 times in my head, and sometimes I find myself jumping from point A to point C to point F," Siegel said. "It's a good reminder that just because I know the case doesn't mean the jury does."

District Judge Jack Lehman said he wants to monitor the practice a little longer before he considers adopting it.

"I'm fascinated with it, but it would be a major change," Lehman said. "I admire the fact that Judge Gibbons is willing to do it, and I'm sure he will summarize his feelings for the rest of the judges. If he says it's a success, I wouldn't be surprised if others begin doing it."

Lehman said he believes the Arizona Supreme Court requires its Superior Court judges to allow jury questions and that court is "one of the better Supreme Courts."

"I think sometimes jurors feel very frustrated," Lehman said. "I think they feel it hinders them (to not be able to ask questions ) and they wish they'd been able to ask this and this and what about so and so."

District Judge Valorie Vega, who handles a civil caseload, said she was willing to allow jury questioning until she got feedback from many attorneys who appear before her.

"I asked counsel if they wanted to start doing so, and they all said 'No,' " Vega said. "I think it's because it puts one more element of uncertainty into the case. They're unsure what kinds of questions they'll get" and if they'll be ones impermissible under the laws of evidence.

Maybe one day there will be a change of heart, Vega said.

"It's human nature not to like change, and it's kind of being tested right now," Vega said. "Maybe if it's successful, more jurisdictions will start doing it."