Judges needed
Jury selection shouldn’t be left to clerks
A patient undergoing surgery expects a doctor, not a nurse, to wield the scalpel. When people call 911, they expect real police officers, not stand-ins, to respond.
When two parties take a case to court, they expect a judge, not a clerk, to be in charge when juries are seated.
Allegheny County Common Pleas Court has done litigants a disservice by allowing clerks to conduct jury selection in civil trials. True, the clerks can consult with a judge, who will issue a ruling when a dispute over a prospective juror’s suitability arises. But, as a state Superior Court panel just noted in overturning a verdict in a case involving UPMC, there’s no substitute for a judge’s presence during juror questioning.
In their suit against UPMC, a woman and a trust benefiting her daughter alleged negligence because the child fell out of her adult-sized hospital bed and sustained various injuries. Before the March 2017 trial, the plaintiffs’ attorney, Harry S. Cohen, objected to the seating of three jurors because of concerns about their impartiality. His concerns were presented to the Calendar Control judge, Ronald Folino, who determined that all three were fit to serve. Mr. Cohen then used three of his four peremptory challenges to keep the trio off of the jury, limiting his ability to shape the rest of the selection process.
Mr. Cohen challenged the jury selection process on appeal. The Superior Court panel overturned the verdict and ordered a new trial.
It agreed that one of the three jurors should have been disqualified and described the jury selection process as problematic, saying prospective jurors’ body language and manner of speaking can give a judge as much insight into their suitability to serve as the answers they give during vetting. A judge’s presence, it said, is “essential.”
Richard Heppner, assistant professor at Duquesne University School of Law and an attorney at Reed Smith, said state court rules are silent on whether judges have to be present for jury selection. But if the county doesn’t change its policy now, he said, it’s likely that more litigants will make an issue of it.
Not every part of the process is flawed and not every attorney dislikes the current arrangement. David R. Johnson, an attorney at Burns White and fellow of the American College of Trial Lawyers, said he likes the process partly because prospective jurors are questioned individually while other courts vet jurors in groups. He’s heard concerns that having judges preside during questioning will cause cases to back up.
UPMC has said it will seek a rehearing before the Superior Court. Regardless of the outcome, the case has exposed a troubling flaw in the county’s civil courts. There’s no unringing the bell. Based on the Superior Court ruling and the possibility of future appeals, the county court really has no choice but to change its policy and have judges preside over jury selection from now on.