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Ordering a new trial in a case of alleged excessive force by police, a federal appeals court has ruled that trial judges must voir dire potential jurors about possible bias in favor of police witnesses and cannot rely on end-of-trial jury instructions to cure the effects of any such bias. “The concern in this case is that there may have been venirepersons in the jury pool who were dispositioned to credit the testimony of a police officer over that of a civilian simply by reason of the officer’s official status, and the district judge failed to engage in questioning which would have assisted him and counsel in identifying such venirepersons,” a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals said in Butler v. City of Camden. The decision revives a suit brought by Leonard Butler, a Pennsauken, N.J., man who claimed that after leading police on a high-speed chase, he offered no resistance when he was apprehended but was nonetheless beaten by several police officers for up to five minutes. Before the trial, U.S. District Judge Stephen M. Orlofsky dismissed claims against all defendants except Camden, N.J., Police Officer Jeffrey Frett who faced two counts — use of excessive force in violation of the Fourth and 14th Amendments and bystander liability under the federal civil rights statute. As trial began, Orlofsky conducted voir dire himself, including questions on whether anyone in the jury pool or any family members had ever worked for a police department or been arrested. At sidebar, plaintiff’s attorney Alan E. Denenberg of Abramson & Denenberg asked Orlofsky to pose additional questions relating to potential bias in favor of police witnesses. Denenberg proposed four additional questions, including whether anyone was “more inclined to believe the testimony of a law enforcement officer over the testimony of a citizen” and whether anyone was “more inclined to feel force used by the police department was lawful simply because it was done during the course of an arrest.” Orlofsky denied the request, saying: “Just put that in your requests to charge and I’ll put that in the charge to the jury. … I give it as a standard charge in all cases, anyway.” Denenberg persisted, saying he “thought it would be better to pre-empt that now, if anyone here had any feelings one way or another for or against police officers based on any experience that they had.” But Orlofsky said he was going for the same information by asking questions about arrests and working for police or having relatives who do. Denenberg said, “I think my question is a little different.” But the judge assured that he would “deal with that in the charge.” In his final push, the plaintiff’s lawyer stressed that ferreting out attitudes about police credibility would help both sides by showing not only those biased in favor of police, but also those biased against them. But Orlofsky was resolute in postponing any such remarks to the jury, saying: “My reluctance in asking it at this point is that no one on the panel so far has given me any indications that they’ve ever been arrested or that they believe or disbelieve a police officer or anybody else and I don’t want to highlight that. But, I will give you a charge in the charge that they are to consider the testimony equally.” Raising such issues at the outset, in voir dire, Orlofsky said, would be “more prejudicial than helpful.” Now the 3rd Circuit has ruled that Orlofsky erred by eliminating the issue of potential law enforcement bias from issues explored in voir dire. “The purpose of the voir dire is to both enable the court to select an impartial jury and assist counsel in exercising peremptory challenges,” wrote visiting U.S. District Judge Petrese B. Tucker. “The trial court’s duty to seat an impartial jury requires that it test prospective jurors for actual bias and strike for cause those persons who will not be able to impartially follow the court’s instructions.” 3rd Circuit Judges Dolores K. Sloviter and Thomas L. Ambro joined Tucker, an Eastern District of Pennsylvania judge sitting on the 3rd Circuit by invitation, in the opinion. Tucker concluded that trial judges have broad discretion in determining the manner and scope of the questioning in voir dire but that an abuse of that discretion will be found if the examination is “so general that it does not adequately probe the possibility of prejudice.” Litigants also have the right to voir dire that allows for “intelligent exercise of peremptory challenges,” Tucker said. Although lawyers don’t have the right to have specific questions posed, the trial court must “make those inquiries necessary to satisfy both its duty to select an impartial jury and allow for intelligent exercise of peremptory challenges.” Reviewing 3rd Circuit case law on the issue, Tucker determined that “it is the rare case that the failure to ask a particular question has resulted in reversal. However, we have found error and reversed in cases where the district court barred all inquiry into a relevant subject matter designed to elicit a disqualifying prejudice.” Denenberg argued on appeal that an inquiry relating to police bias was necessary since all his witnesses on liability were civilians and all the defense witnesses were police officers. But attorney Jonathan E. Diego of the Camden Office of the City Attorney argued that Orlofsky’s voir dire questions about arrests and police work were sufficient to safeguard against any disqualifying disposition toward law enforcement. Tucker disagreed, saying, “There is no basis to conclude that only arrestees or persons employed in law enforcement or their immediate relatives may harbor a disqualifying bias toward the police.” The trial, Tucker said, “essentially boiled down to a swearing contest between [Butler] and the responding police officers.” In such circumstances, she said, other circuits have held that “where law enforcement agents are apt to be key witnesses, the trial court … should ordinarily make inquiry into whether prospective jurors are inclined to have greater faith in the agents’ testimony merely by virtue of their official positions.” Tucker determined that Orlofsky’s error could not be considered harmless because the judge had not also included any instruction about police bias in his final charge to the jury despite his earlier promise that he would. Because Orlofsky resigned from the federal bench and returned to private practice in August, the case will be reassigned on remand. Offering instructions for the yet-to-be named judge, Tucker said that although the trial judge has “wide latitude” to decide the particular questions to be asked, as well as the scope of the inquiry at voir dire, the judge must “make those inquiries relevant to the discovery of actual bias and which, in the final analysis, satisfy the essential demands of fairness.”

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