Bill could close jury questioning p.19

By: Editorial Staff

Provision of New York death penalty law would allow closed court sessions sp.

A LITTLE-NOTICED provision of New York state's new death penalty law would allow judges to order prospective jurors to be questioned in private in an attempt to detect possible racial bias.
Under the law, signed last month by Gov. George Pataki, this private questioning could take place for "good cause," and the record could be sealed at the request of either side.
Also, after a conviction, similar closed sessions could be held during a second sentencing phase of the trial.
Associated Press and New York Publishers Association lawyers have told Pataki and legislative leaders the law doesn't meet public access standards set by appeals courts.
Under these standards, a judge presumes the public's access to all phases of a trial, unless there are compelling reasons for closure.
Michael Finnegan, the governor's chief counsel, said the private-questioning provision was included at the request of the Rev. Calvin Butts, pastor of Harlem's Abyssinian Baptist Church and a death penalty opponent.
"The most important thing was ensuring the question of racial justice and possible prejudice was addressed," Finnegan said.
"We don't want racially biased people sitting on a jury, particularly when the facts suggest that there may very well have been a disproportionate number of minorities convicted of murder," he added.
Kenneth Connelly, counsel to Sen. Dale Volker, the Erie County Republican who was a chief sponsor of the law, said "the concern was that in some instances some people might not be completely forthcoming if the questions were asked in a big room with a lot of people watching."
Connelly said sponsors were taken by surprise when the First Amendment issue was raised by media representatives late in the debate.
The AP and the publishers "were raising an issue we hadn't really thought about," he said:
"We were really looking at the fairness issue and trying to keep a level playing field with the jury."
By the time the issue was raised, a vote was already scheduled, and legislators were reluctant to upset the timetable of the bill, which attracted much attention in 19 years of debate.
So Volker read a statement into the record, putting judges on notice that they must demonstrate a good reason for closing any juror questioning.
Assembly Speaker Sheldon Silver had a similar statement read into the record.
In the event of challenges by the news media to close the courtroom, those statements could be used to show legislative intent.
In a letter to Finnegan and others, attorneys representing news organizations warned that the provision could lead to constitutional challenges. Finnegan said he believed the provision would withstand any court challenge.
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, disagreed, commenting, "The heart and soul of our criminal justice system has been the open selection of jurors."