Friends and Foes in the Jury Box: Walls v. Kim and the Mission to Stop Improper Juror Rehabilitation - Kathleen Wright

• Publication year: 2002

Friends and Foes in the Jury Box: Walls v. Kim and the Mission to Stop Improper Juror

Rehabilitation

During the summer of 2001, the Georgia Court of Appeals substantially limited juror rehabilitation. In Walls v. Kim,¹ the court held that the trial court erred in refusing to disqualify a challenged juror who knew and worked with the civil defendant.² While failing to set out a clear test for future disqualification, the court clearly voiced its displeasure with "rehabilitating" biased jurors and emphasized that judges should consider potential jurors' situations and use common sense when ruling on challenges for cause.³

I. Factual Background

Patricia Walls died of a pulmonary thromboembolism at the age of forty-five. One week prior to her death, Mrs. Walls was treated at the Phoebe Putney Memorial Hospital emergency room for a leg cramp and shortness of breath. Dr. Tae Won Kim, the treating physician, ordered several tests, following which Mrs. Walls was released to return home. After she died, Walls's surviving husband brought a wrongful death action against Dr. Kim.⁴

During voir dire, one of the venire members stated that she was an emergency room nurse who knew Dr. Kim and had worked with him. The woman admitted that she "probably hoped" the trial would end in Dr. Kim's favor.⁵ She agreed it would be a fair statement to say that because she knew Dr. Kim, and did not know Mr. Walls, plaintiff and defendant did not "start off with the scales equally balanced."⁶

At that point, Mr. Walls's attorney made a motion to remove the nurse from the jury pool based on her bias toward the defendant.⁷ The judge then asked her "whether she would be able to put aside her personal feelings and base her decision upon the evidence as presented and the law as given."⁸ She said she could. The plaintiff's attorney asked the nurse whether she had stated that the plaintiff and defendant did not start on equal footing in her view. She said yes, but then answered to further questioning that she did not favor one side over the other prior to hearing any evidence. The judge then requested that the attorney move on and later refused to dismiss the nurse for cause.⁹

Mr. Walls appealed the trial court's decision to retain the nurse on the jury panel, and the appellate court held that she should indeed have been dismissed for cause.¹⁰ The court found that the trial court's failure to dismiss the nurse was an abuse of discretion and reversed the lower court's judgment.¹¹ The case was remanded for a new trial.¹²

Dr. Kim filed a petition for certiorari to the Supreme Court of Georgia on July 19, 2001.¹³ The petition was granted January 10, 2002, and the case is set for argument during the April 2002 term.¹⁴

II. Legal Background

The ideal of an impartial jury is a cornerstone value in the American justice system and is constitutionally guaranteed to criminal defendants by both federal and state governments.¹⁵ Likewise, civil trials carry an expectation of impartial judgment.¹⁶

Either bias or prejudice,¹⁷ once shown, has been sufficient cause to challenge a juror since a time prior to our country's creation. The longstanding idea that biased jurors should not serve was discussed in an 1847 opinion by the Georgia Supreme Court.¹⁸ In Hudgins v. State,¹⁹ the court considered whether a juror who held a fixed opinion about the case based on hearsay should have been removed from the jury pool.²⁰ The statute in place at the time, passed in 1843, listed several mandatory questions to be asked of potential jurors in criminal cases.²¹ The first was whether the juror had formed and expressed an opinion of the guilt or innocence of the prisoner based upon witnessing the crime at issue or upon hearing any sworn testimony.²² When the challenged juror indicated his opinion was based on hearsay and rumor, and not from witnessing the crime or hearing testimony, the trial court pronounced him competent.²³ The supreme court reversed, discussing years of prior cases, and declared, "'bias'—'prejudice'—would, if admitted to exist, furnish an available objection to the juror. Such was the opinion of Brook & Bubington, in the 15th century; and, as to this principle, there has been no variableness nor shadow of change for the last three hundred years."²⁴

The common method for screening juries for bias or prejudice is questioning of the jury panel through a process called voir dire.²⁵ When the pool of potential jurors is assembled, party attorneys or the trial judge direct questions to either the entire panel or individual venire members. Under Official Code of Georgia Annotated ("O.C.G.A.") section 15-12-133, parties may ask a potential juror questions

touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination,

leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.²⁶

Potential jurors carry a presumption of impartiality, and parties challenging for cause carry the burden of showing bias.²⁷ Because "the trial judge is in the best position to judge the credibility of the juror . . . trial courts have traditionally had significant discretion to retain or dismiss a juror."²⁸ Appellate courts reviewing the trial judge's decision will only reverse upon a "manifest abuse of discretion."²⁹ It is also important to note that the analysis of court opinions regarding challenges for cause is hampered by the changing influence of rules related to peremptory challenges and harmless error.³⁰

With this caveat in mind, two kinds of challenges for cause exist under Georgia law: principal, in which potential jurors are automatically disqualified based on certain facts; and for favor, in which some suspicion of actual bias is raised based on the juror's answers to voir dire questions or other facts and circumstances.³¹ As explained recently in Whelan v. Moone,³²

A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor, as that a Juror is of kin to either party within the (prohibited) degree; . . . that he has an interest in the cause; . . . [or] that he is the party's master, servant, counsellor, steward or attorney, ... all these are principal causes of challenge, which, if true, cannot be overruled....33

Even in this relatively clear-cut area, there has been some dispute when a juror's "interest in the cause" is distant. For example, an 1849 GeorgiaSupreme Court case, Mayor of Columbus v. Goetchius,³⁴ stated that citizens of a city were not impartial jurors where the city was one of the parties to the matter.³⁵ The rationale of the court was that the citizens had a personal financial interest in the case because, for example, the city could charge its citizens in taxes for any amount the city may be forced to pay on a judgment against it.³⁶

Five years later, in Justices of the Inferior Court v. Griffin & West Point Plank Road Co.,³⁷ the court held that county citizens were competent jurors because the jurors would likely perceive the potential benefit of a fine paid to the county treasurer to be offset by the potential damage of losing the use of a road.³⁸ The court held that juror-citizens of the county would only be incompetent if they were certain to gain by deciding the suit in favor of one of the parties.³⁹ These cases were resolved by legislative actions in 1863 and 1874; citizens of a city or county party are now statutorily acceptable jurors on that basis.⁴⁰

Courts in general are reluctant to create new classes of jurors who can be disqualified for a principal cause.⁴¹ This is especially true in civil cases; the few defined principal cause classes, aside from kinship or financial interest, deal mainly with criminal cases. For example, full-time employees of a district attorney's office should be excused for cause in criminal cases prosecuted by the same district attorney's office, regardless of lack of actual bias.⁴² Similarly, upon challenge, police officers must be removed from Georgia juries in criminal cases.⁴³

While challenges for principal cause create an irrebuttable presumption of bias, challenges for favor require the judge to hear further evidence and decide whether to remove the juror.⁴⁴ Judges have great discretion in deciding which potential jurors should be removed for actual bias.⁴⁵ In civil litigation, Georgia law provides that "it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed."⁴⁶ The language of the statute comes in part from the 1854 Justices case.⁴⁷ The Supreme Court of Georgia in turn pulled the Justice language from an earlier case:

"Cook being indicted for high treason, and the Jury called, he offered to ask the Jurors, in order to challenge them, if they had not said he was guilty or would be hanged .... This is a good cause of challenge" .... If the formation and expression of an opinion, that one party, rather than the other, ought to prevail, be a good cause of challenge, much more is the actual "wish" or "desire" that one party should so prevail, a good cause. Such wish or desire is partiality itself—not merely evidence of partiality—which is the most that the formation and expression of an opinion can be.⁴⁸

When a venire member is challenged for favor, judges must decide, based on evidence of the juror's opinion, wish, or desire, whether the juror should be dismissed.⁴⁹ However, there is longstanding recognition that some opinions will not affect the juror's ability to render impartial service.⁵⁰ The test is whether the opinion is "so fixed and definite" that it would prevent...