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Md. high court weighs exception to mandatory voir dire question

A defense attorney and a lawyer for the state battled at Maryland’s high court Monday over whether a judge’s failure to ask prospective jurors if they respect a criminal defendant’s constitutional right not to testify invalidates a subsequent conviction or whether the failure is rendered “harmless” if the defendant in fact testifies at trial.

Assistant Maryland Public Defender Stephanie Asplundh told the Court of Appeals that a judge’s failure to ask the question is never harmless because it protects a fundamental constitutional principle that defendants always have the right to remain silent and not testify.

Assistant Maryland Attorney General Andrew J. DiMiceli acknowledged the importance of screening out would-be jurors who cannot respect a defendant’s right not to testify but said the pretrial safeguard becomes unnecessary if the defendant later testifies.

DiMiceli pressed his argument in urging the high court to reinstate a woman’s assault conviction that had been overturned because the trial judge had declined to ask the question during voir dire, the pretrial screening of would-be jurors. DiMiceli said the judge’s failure to ask prospective jurors their views on a defendant’s silence had no effect on the jury’s ultimate finding of Latoya Jordan’s guilt because she testified in her own defense.

The issue confronting the high court was whether such a testimonial exception exists to its January 2020 decision in Kazadi v. State requiring judges to ask would-be jurors, upon the defense’s request, if they can still presume the defendant innocent if he or she does not testify.

Court of Appeals Judge Jonathan Biran appeared skeptical of the proposed exception.

Biran noted that the high court in Kazadi also required judges to ask prospective jurors, at the defense’s request, if they can presume the defendant is innocent and require the prosecution to prove guilt beyond a reasonable doubt.

Biran asked DiMiceli if a judge’s failure to inquire about the presumption of innocence or the burden of proof could ever be regarded as harmless errors and, if not, how do they differ from the third required question concerning a defendant’s right not to testify.

DiMiceli responded that the voir dire process is not part of a trial’s “structural” underpinnings that are necessary for a valid trial and verdict. Thus, any error during voir dire can be rendered “harmless” if it does not affect the verdict, he said.

By contrast and example, the requirement that juries be sworn in has been held to be a structurally necessary for a valid trial and verdict, DiMiceli added.

“The error (here) is not structural and can be subject to a harmless error review,” DiMiceli said. “(But) a guilty verdict can never be truly given by an unsworn jury.”

Asplundh, pressing Jordan’s case, said the purpose of the voir dire questions concerning criminal defendants’ rights is to cast “a net to catch jurors unable or unwilling” to respect those rights.

“These questions strengthen the net,” Asplundh said. “The right to not testify is an essential part of that net.”

But Judge Steven B. Gould interjected that a judge’s failure to ask prospective jurors about a defendant’s right not to testify could perhaps be rendered harmless by the judge’s instruction to the jury before deliberations that it cannot hold the defendant’s silence against him or her.

Asplundh responded that the question must be asked during voir dire to prevent the swearing-in of a juror who will wrongly anticipate a defendant’s testimony when such anticipation should not be part of a juror’s thinking.

“It is necessary to interrogate jurors at the beginning of the process to ensure they are qualified,” Asplundh said.

Jurors should not be “viewing the entire trial with an expectation that the defendant will testify,” she added.

Jordan was facing trial in Baltimore City Circuit Court on a charge of having assaulted a woman at a summer youth program attended by Jordan’s niece in July 2019.

Having not been asked their views on a defendant’s right not to testify, the jurors were told by Jordan that she never hit the woman but rather picked up a “wet floor sign” to prevent the woman from striking her with a fire extinguisher.

The jury found Jordan guilty of second-degree assault in December 2019. She was sentenced the following month to two years in prison, with all but about 10 days suspended, and two years’ supervised probation, according to online court records.

The Court of Special Appeals overturned the conviction in April, citing the judge’s failure to ask the requested voir dire question on the defendant’s right not to testify. The state then sought review by the Court of Appeals.

The high court is expected to render its decision by Aug. 31 in the case, State of Maryland v. Latoya Jordan, No. 23, September Term 2021.

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