Despite a legal opinion that a closed voir dire process is unconstitutional, more than half the potential jurors summoned in a sex assault case this week were questioned privately.
During the noon hour on Tuesday, March 3, Chief District Court Judge Doug Walker met with prosecutors and defense attorneys in open court to review 109 juror questionnaires. The court then decided on its own that 59 should be questioned behind closed doors.
Public defender Amy R. Smith said the decision to close the jury selection process to the public was made to “spare people” from talking about things that might be uncomfortable. District Attorney Will Furse added that the private talks would “avoid tainting” the viewpoints of other potential jurors.
One court officer questioned the court’s judgment. Steven Zansberg, president of the Colorado Freedom of Information Coalition, said the U.S. Supreme Court had made it clear that the jury selection process was presumptively open. Zansberg is also a lawyer for The Cortez Journal, Associated Press and other Colorado newspapers.
Zansberg explained that individual jurors who individually relayed discomfort talking about personal experiences could request to be questioned privately. But, he added the court shouldn’t offer a blanket presumption that jurors might be uncomfortable, even in a sex assault case.
He cited a U.S. Supreme Court decision (Press Enterprise I) that held that even in a trial that addresses personal and sensitive subject matter such as rape of a child, closed voir dire must be on juror-by-juror basis. The court also held that judges should invite potential jurors to request closed voir dire individually.
“The Supreme Court has made clear that a judge must notify the potential jurors that they may affirmatively request to be questioned privately about highly personal and private subjects like sexual assault,” said Zansberg.
“The judge is required to use a scalpel, not a cleaver,” Zansberg said. “Most questions should be done in open court.”
Last fall, Zansberg forced the courts to keep the jury selection process open in the James Holmes murder trial. Holmes was arrested and charged in the July 2012 Aurora theater shooting.
This week’s court decision to limit public access to voir dire was made after jurors completed a 27-question survey. Most jurors placed on the court’s private voir dire list indicated they had either been exposed to pretrial publicity or had a personal connection to sexual assault.
Other jurors questioned privately this week included the judge’s wife; one with a physical disability; another with anxiety issues; and a neighbor of the defendant’s, who indicated the suspect was wrongfully accused. Others queried behind closed doors included jurors in medical, educational or counseling careers; those with moral or religious objections to sitting in judgment and others whom already formed an opinion to guilt or innocence.
The closed voir dire process started on Wednesday and was expected to conclude by Thursday. The trial is expected to continue next week.
Andrew Allmon, 57, of Cortez is being tried for a second time after a previous jury was unable to reach a verdict. Indicted on six child sexual assault charges, Allmon could receive life in prison if found guilty.
The alleged victim of the child sexual assault case was 8 years old at the time of the incident in June 2013.
At the first trial, jurors heard inconsistent statements from the only eyewitness of the alleged crimes, and there was no physical evidence presented. Allmon didn’t testify.
Allmon has remained in custody under a $30,000 bond since his arrest.
A convicted sex offender from a 2008 case in New Mexico, Allmon also faces four related drug offenses in connection to the current case. A separate jury is expected to decide the drug charges in May.
tbaker@cortezjournal.com