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Juror's question a criminal trial first for Hernando County

BROOKSVILLE — A juror in the front row passed a piece of paper to the judge.

A question for the witness, a young woman who just finished describing how a relative sexually molested her years ago.

With the attorneys' approval, the judge read it aloud.

"I'm just trying to figure it out, why she didn't run from home?"

The blunt inquiry stunned Circuit Judge Stephen Rushing's courtroom last week.

The powerful moment represented the first time a Hernando County jury ever questioned witnesses during a criminal trial.

In civil cases, it is more common. Starting in 2008, the Florida Supreme Court said civil trial judges must allow jurors to take notes and submit questions for witnesses.

But in criminal cases, it gave judges discretion.

"We ask jurors to … make hard decisions," Rushing said. "I think we owe it to them to make their service as easy as possible. If they have questions that they want answered … we should give them that opportunity."

The move is part of a broader trend to modernize the judicial system and better involve often-apathetic jurors.

Hernando County Judge Don Scaglione sits on a statewide committee that helped draft the change. "They wanted to make it friendlier for juries and make it more consistent throughout the state," he said.

Not all in Hernando legal circles are quick to adopt the practice, questioning whether it disrupts jurors' traditional role as "passive fact-finders." Other concerns include how the questions will delay a trial or lead jurors to premature deliberations.

In more than a dozen interviews with local judges and attorneys, most remain skeptical of the idea. Circuit Judge Jack Springstead is one of those opposed.

"I would be very concerned because jurors aren't trained attorneys," said Springstead, who handles felony criminal cases. "As long as it is not mandatory, I'm not inclined to do it."

• • •

This is how it worked in Rushing's court:

When attorneys finished questioning a witness, the judge asked jurors to write down questions and hand them to the bailiff.

The judge then met privately at the bench with the prosecutor and defense attorney to discuss whether the questions were legally permissible. Either attorney could object to the questions. If neither did, the judge read the questions to the witness.

After the answer, the judge allowed each attorney to follow up with their own questions.

Rushing said he introduced the jury question option a year ago after the rule change but left it to the discretion of the attorneys. This was just the first time both accepted.

"The reason it is not done frequently in criminal trials is that one or both attorneys don't want to take that chance," he said. "You are losing some control."

In last week's trial, Richard Lamerton faced eight sex charges. The jury asked about 20 questions during three days of testimony. The judge declined to ask only two of the questions because they were not appropriate.

The majority of the questions appeared to seek clarification on specific details from testimony— a date, age or location. But others, like the question about why the victim didn't run for help, sought explanation not discerned in typical legal questioning.

Defense attorney Sean Cox said he was surprised by some questions. "What it shows you," he said, "is every person is so unique and has a different interpretation of the evidence."

• • •

Cox called it a "good practice." He said he would likely do it again in the future.

Rushing said he felt it helped jurors better understand the case. It also allows them to be more confident in the verdict.

Spring Hill resident Kathie Gatewood sat as a juror earlier this year in the case of George Olmo, who faced kidnapping and rape charges. The jury spent nearly nine hours deliberating, finishing just before 2 a.m.

If they had been allowed to ask questions, it would have been much easier, she said. "I had questions for all of them," she said. "So much didn't make sense."

Often, this is part of an intentional strategy on the part of a prosecutor or defense attorney. "There is a lot of strategy," said Assistant State Attorney Don Barbee, Hernando's supervising prosecutor. "Not just questions which get asked but the order they get asked, and certain questions may not be asked."

Brooksville defense attorney Peyton Hyslop expressed similar concerns. "If it gets shot down then how does that juror feel?" he asked. "If they think I'm hiding it from them are they going to assume the worst about my client."

Attorney Chip Mander said he is not keen on the idea.

"But I really don't know until I've done it," he said. "People don't like to do new things."

John Frank can be reached at jfrank@sptimes.com or (352) 754-6114.

Juror's question a criminal trial first for Hernando County 06/20/09 [Last modified: Sunday, June 21, 2009 7:18am]

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