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The Georgia Supreme Court this week wrestled with the tricky issue of juror rehabilitation, the practice by which some trial judges allow potential jurors who have indicated a bias to remain on the panel. The argument before the justices on Tuesday dealt with whether an Albany, Ga., trial judge in a medical malpractice case should have struck for cause a nurse who had worked with the defendant-doctor. Records show that during jury selection, the nurse said she “probably” would have wanted the doctor to win. But when the judge asked the nurse if she could set aside her personal feelings and follow his instructions, she said yes. The judge then allowed her on the panel, forcing the plaintiff’s lawyer to use one of his peremptory strikes. The jury found the doctor-defendant not liable for the death of the plaintiff’s wife. By a 6-1 vote, the Georgia Court of Appeals last year said the plaintiff was entitled to a new trial because the judge should have removed the nurse automatically. Walls v. Kim, 250 Ga. App. 259 (2001). The majority decision criticized judges who ask such a “loaded question” to rehabilitate biased jurors — and at least one high court member seemed to agree. “I read this case the way you do,” Chief Justice Norman S. Fletcher told the plaintiff’s lawyer arguing in support of the appeals court ruling Tuesday. Juror rehabilitation “is not the trial judge’s role,” he said. The rest of the court was harder to read, but it was clear the justices were interested in the case — especially in how their ruling might affect criminal matters. Fletcher and Justices George H. Carley and P. Harris Hines each asked both sides to address that question. But the justices may have to answer it themselves, as both the plaintiff’s lawyer, Del Percilla Jr. of Albany and Thomas S. Carlock of Atlanta, representing medical malpractice insurer MAG Mutual Insurance Co., confessed it had been years since they worked with criminal law. Fletcher noted that the issue of jury rehabilitation comes up most frequently in death penalty cases. Later, he wondered whether Georgia’s justice system would allow different rules for a judge’s jury rehabilitation in criminal and civil cases. Carlock, who cited last month’s unanimous decision by the court upholding a death sentence for a convicted murderer claiming three jurors had been improperly rehabilitated, said he didn’t know how the law would allow those separate standards. DOCTOR-CO-WORKER RELATIONSHIP The narrower question of the case boiled down to whether the appeals court had created a rule banning all co-workers of doctor-defendants from serving on medical malpractice juries. Five years ago, the justices held unanimously that they would not create a rule that automatically removed patients of doctor-defendants from the jury pool. “A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area,” wrote then-Presiding Justice Fletcher. He added that a bright-line rule against jurors who were patients of the defendant would make it hard to obtain a full jury panel in rural counties. Cohen v. Baxter, 267 Ga. 422 (1997). When the justices granted the defendant’s petition for certiorari, they asked the lawyers to consider the issue in light of Cohen. Curiously, Fletcher — who authored the Cohen decision — was the only dissenter from the cert grant. Kim v. Walls, No. S02C1569 (Sup. Ct. Ga. cert granted, Jan. 10, 2002). Hines asked Albany lawyer W. Earl McCall, who represented the doctor-defendant Tuesday, whether the appeals court decision at issue was analogous to rules prohibiting law enforcement officers from serving on criminal law juries. McCall said it was. Later McCall added that it was not a manifest abuse of discretion for the trial judge to conclude that the nurse could abide by her oath to be impartial. When Percilla came to the podium, representing the plaintiff, Carley sounded concerned the appeals court decision reined in too much discretion from the trial judges. “If we affirm the court of appeals, will we be going down the road of chilling any trial court rehabilitation?” he asked. “You’re saying that will never be permitted anymore.” Percilla said judges should be allowed to clarify confusing questions by lawyers, but added, “I personally don’t understand the concept of rehabilitating jurors.” Percilla noted that six of the seven appeals court judges who decided the case below had been trial judges and understood the effect decisions have at the trial level — a point also made by James E. Butler Jr., representing the Georgia Trial Lawyers Association as a friend of the court. One of those six judges, John H. Ruffin Jr., was the lone dissenter from the majority decision, arguing that the Cohen precedent wouldn’t allow their ruling. Four of the high court justices — Presiding Justice Leah Ward Sears and Justices Hines, Carol W. Hunstein and Hugh P. Thompson — served on trial courts before moving to appeals courts. Also representing the GTLA, Thomas W. Malone argued that the appeals court had not created a per se rule against co-workers of doctors serving on medical malpractice juries. “We’re dealing with a favor-based challenge,” he said. While maintaining that the appeals court decision allows trial judges to control the jury selection process, Malone railed against the practice of jury rehabilitation. “They don’t rehabilitate the jurors,” he said. “That’s nonsense. They rehabilitate the record” so that the trial verdict will be upheld on appeal.

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