Attention criminal defense attorneys: Maryland’s top court has drawn a significant legal distinction between questions asked and not asked of prospective jurors in your trials.
The Court of Appeals ruled last week that defense attorneys who object to a judge’s refusal to ask their requested question of jury candidates need not renew the objection when the jury is sworn in to preserve the issue of the question’s importance for appeal.
The high court’s decision stands in contrast to its 2012 holding that defense attorneys who object to a judge’s decision to ask a question proposed by the prosecution must renew that objection when the jury is sworn or the issue cannot be raised on appeal.
The court-drawn distinction is rooted in the greater influence a question asked of prospective jurors will have on the composition of the final jury than a question not asked. Because of this greater influence, defense attorneys bear a greater obligation to object to the jury empaneled after having answered an objectionable question than they do to object a second time based on a question never asked, the high court said.
“Put another way, an objection to a propounded, purportedly prejudicial voir dire question relates directly to the composition of the jury because a prejudicial voir dire question, when propounded, may inject the very prejudice that voir dire attempts to filter out,” Judge Michele D. Hotten wrote for a four-judge majority of the seven-member court.
“By contrast, an unpropounded voir dire question, like a defused bomb, cannot likewise prejudice the venire,” or jury pool, Hotten added. “Thus, there is a critical difference between objections to voir dire questions proffered by opposing counsel … that the circuit court ultimately asks the jury – which are categorized as ‘direct’ and waived – and objections based on the trial court’s decision not to ask a party’s own proffered voir dire questions – which are categorized as ‘indirect’ and not waived.”
Criminal defense attorney Chris Flohr, who was not involved in the case, praised the court’s “very important decision” regarding the right of lawyers to object to questions not asked during the jury selection process, known as voir dire.
“Our courts are now moving in the direction of many other states recognizing the critical importance of jury selection,” Flohr, of Blackford & Flohr LLC in Severna Park, stated via email Wednesday. “Voir dire may be time consuming but it is vital to preserve the constitutional right to a fair and impartial jury.”
The Court of Appeals rendered its decision in ruling that a defense attorney validly appealed a judge’s refusal, over the lawyer’s objection, to ask prospective jurors if they respect the presumption of innocence, the need for proof beyond a reasonable doubt and the right of a defendant not to testify — even though the attorney did not renew the objection when the jury was sworn in.
In its decision, the high court sent the case back for a new trial, saying the Washington County Circuit Court judge’s refusal to ask the question violated defendant Anthony George Ablonczy’s right to due process in the trial that led to his conviction and 20-year sentence for armed robbery, robbery, first- and second-degree assault and theft of less than $1,000.
The rejected question in Ablonczy’s case is now required to be asked if requested by defense counsel under the high court’s Kazadi v. State decision last year.
Assistant Maryland Public Defender Claire Caplan, Ablonczy’s appellate attorney, stated via email that “we are glad to see that the Court of Appeals rejected the state’s attempt to manufacture a new preservation requirement for challenges to the trial court’s voir dire, and pleased for Mr. Ablonczy and all other people who have been waiting since January 2020 to get the relief to which they are entitled under Kazadi.”
The Maryland attorney general’s office declined to comment on the ruling.
In its 2012 ruling in State v. Stringfellow, the high court said the defense attorney had waived the right to appeal by refusing to renew the objection to the prosecution’s permitted question of whether prospective jurors could still vote to convict a defendant in the absence of DNA or other forensic evidence linking him to the crime.
Hotten was joined in the opinion by Judges Joseph M. Getty, Brynja M. Booth and Jonathan Biran.
Judge Robert N. McDonald, in a concurring opinion, said the high court should perhaps “jettison” the distinction it has drawn and permit appeals to be brought so long as the defense attorney objected to a question asked or not asked, regardless of whether the objection was renewed when the jury was sworn.
“Otherwise, we end up in the ironic place where an objection to a voir dire question actually used in selecting the jury must be made twice, while an objection to an unasked question that only theoretically had an effect on the selection of the jury need be made only once,” McDonald wrote in a concurrence joined by Chief Judge Mary Ellen Barbera. “Finding an objection to be preserved does not mean the objection has any merit; it simply means that an appellate court must consider the substance of the objection.”
Judge Shirley M. Watts took the opposite tack in a separate concurrence, saying objections to questions asked or unasked must be renewed when a jury is impaneled for an appeal to be preserved.
“In light of our holding in Kazadi, it would be difficult to conclude that voir dire questions of the type discussed in Kazadi and at issue in this case are not critical to the composition of the jury and to determine that, simply because the objection is to an unasked question, no renewed objection at the time the jury is empaneled is required to avoid waiver of the issue,” Watts wrote. “I would conclude that an objection is required to be made or renewed at the time the jury is empaneled to preserve an issue as to the trial court’s refusal to propound Kazadi-type voir dire questions, but the rule should not be applied to the detriment of defendants whose cases are now pending on direct appeal.”
The Court of Appeals rendered its decision in State of Maryland v. Anthony George Ablonczy, No. 28, September 2020.