March 21, 2007

Peter Lattman reports:

[Joe Nacchio's attorney Herb] Stern had asked the judge for permission to question individual jurors, a process called “individual voir dire.” The government asked the court to reject Stern’s request. Stern is the author of an eight-volume treatise, “Trying Cases to Win.” Wrote the government:

There are excellent reasons for not allowing counsel to conduct individual voir dire, as it is a well established technique for coloring jurors’ views about the case. See, e.g., Herbert Stern, Trying Cases to Win: Voir Dire and Opening Argument, at 473 (1991 ed.) (explaining that one of the purposes of the voir dire is “to color jurors’ views about the case, to inoculate them against your difficulties, to enlist them with your strengths,” and observing that this practice “is universally condemned in law books as illegitimate even as it is universally practiced in the law courts”); id. at 504 (suggesting that in voir dire, the lawyer should “advocate your cause and begin to influence the panel”). Accordingly, the government submits that no forthwith hearing is necessary.

(A "forthwith hearing" is a strange Colorado-specific turn-of-phrase for a hearing not in the ordinary course. I'll leave the etymology to others.)