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Alameda County had been one of the last courts in the state still following a 1980 state Supreme Court decision that required lawyers to question jurors individually in death penalty cases. But no longer. In a trial earlier this year, Alameda County Superior Court Judge Allan Hymer broke ranks and decided to use a modified version of the so-called Hovey voir dire. Despite a state law aimed at reducing the practice and its decade-long fade from California courtrooms, Hovey voir dire has been used in every Alameda County Superior Court capital case since its inception. Some believe Alameda County judges are being pressured away from using Hovey because of the extra time it adds to trials and its potential to create backlogs on the criminal court calendar. “In the typical case with one defendant, Hovey probably adds two to three weeks to a trial,” said criminal defense attorney Michael Berger. “That varies. If there’s more than one defendant, [it's] especially difficult.” Hovey voir dire is based on a 1980 California Supreme Court case, Hovey v. Superior Court, 28 Cal.3d 1. It required jurors who faced removal due to their views on the death penalty to be questioned privately and individually. In the trial of Marquez Lott, Hymer allowed attorneys to question jurors in small groups, but not individually. Lott was convicted of killing St. Mary’s College student Lisa Aline Smith during a 1997 street robbery. Lott avoided the death penalty and received a life sentence. It was one reason why Berger, his attorney, didn’t mind the switch from Hovey � although he generally supports its use. “I think it worked pretty well for us in this case,” he said. “But Hovey has some real advantages generally. The main reason is you can let jurors speak freely, and you can probe their attitudes about the death penalty.” Superior Court Judge Thomas Reardon, who sets the calendar for death penalty cases, said judges have recently discussed non- Hovey means of questioning potential jurors in death cases. He said he knew Hymer wasn’t going to use it when Reardon assigned him the Lott case. But Reardon said the bench has no policy on whether judges should use Hovey or not. “The reality is that each, individual judge can do whatever he or she wants,” Reardon said. In 1990 Californians approved Proposition 115, which requires jurors to be questioned in the presence of other prospective jurors “where practicable.” The initiative was sponsored by state prosecutors and victims’ rights groups. While most California courts have strayed from using Hovey, there is no enforcement for courts that still do. But many courts are abandoning the practice to shave weeks or months off death penalty trials. In the murder trial of Scott Peterson, for example, it took three months to get through the Hovey jury selection process. (Judge Alfred Delucchi, who oversaw the Peterson trial in San Mateo County, had retired from the Alameda County Superior Court.) Reardon said California lawmakers have asked courts in the past to stop using Hovey because of the extra time it adds. “It takes somewhat longer to get a case to trial than it would otherwise,” Reardon said. “You don’t hear that too much anymore, but there was a time that we were hearing those sorts of things.” Reardon also said he has some influence on when Hovey is used. He could, for example, send cases to judges who are more likely to use Hovey or those who aren’t. But there’s still much support for Hovey on both sides of the criminal fence. “The defense lawyers like it, and so do the prosecutors, because it really gives you the opportunity to find out something about a juror,” Oakland criminal defense lawyer James Giller said. “What they’re saying won’t be tainted because [there are] other people in the room.” Prosecutor Matthew Golde, who prosecuted Lott, said he didn’t question Hymer’s decision to not use Hovey and thought Lott received a fair trial. But he also said his goal in any case is to get as many details as possible about jurors. “I think both sides have that goal,” Golde said. “It’s heightened with a death penalty case.” Howard Varinsky, a jury consultant who helped pick the Peterson jury for the prosecution, says Hovey is worth the extra time it takes. “When you’re talking about someone’s life, I think you should spend the extra money,” he added. Yet Berger said prosecutors could benefit more from Hovey. “The more they know about a jury, the better off they are,” he said. “The defense just needs one juror to hold out. [Prosecutors] need all 12.”

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