IN THE SUPERIOR COURT OF DOUGLAS COUNTY
STATE OF GEORGIA
STATE OF GEORGIA,
Plaintiff,
v.
NICHOLAS JASON BRYANT,
Defendant.
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Indictment No. 04-CR-579
MOTION #86: MOTION TO ALLOW COUNSEL TO CONDUCT VOIR DIRE AND TO
REMOVE UNDUE RESTRICTIONS ON COUNSEL’S ABILITY TO CONDUCT
MEANINGFUL VOIR DIRE
NICHOLAS JASON BRYANT, through undersigned counsel, respectfully moves this
Court, pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States
Constitution, and Article I, § I, ¶¶ I, II, IV, V, VII, IX, X, XI, XII, XIII, XIV, XVI, XVII, XVIII,
XXIV and XXVIII of the Constitution of the State of Georgia, to reconsider this Honorable
Court’s restrictions on voir dire and to allow the parties to probe potential jurors for potential
bias.
In support of this motion, counsel states:
1.
This Honorable Court, in its October 15, 2007 Order Regarding the Conduct of Voir Dire
has directed that counsel shall no longer be allowed to conduct voir dire in the above-captioned
capital trial with respect to questioning under Witherspoon v. Illinois, 391 U.S. 510 (1968)
Wainwright v. Witt, 469 U.S. 412 (1985) and Morgan v. Illinois, 504 U.S. 719 (1992). In
support of its decision, the Court cites Uniform Superior Court Rule 10.1, which states that “[i]n
cases in which the death penalty is sought, the trial judge shall address all Witherspoon and
reverse-Witherspoon questions to prospective jurors individually.”
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2.
The scope of voir dire in Georgia is governed by O.C.G.A. § 15-12-133, which states
that:
. . . In all criminal cases both the state and the defendant shall have the right to an
individual examination of each juror from which the jury is to be selected prior to
interposing a challenge. The examination shall be conducted after the
administration of a preliminary oath to the panel or in criminal cases after the
usual voir dire questions have been put by the court. In the examination, the
counsel for either party shall have the right to inquire of the individual jurors
examined touching any matter or thing which would illustrate any interest of the
juror in the case, including any opinion as to which party ought to prevail, the
relationship or acquaintance of the juror with the parties or counsel therefor, any
fact or circumstance indicating any inclination, leaning, or bias which the juror
might have respecting the subject matter of the action or the counsel or parties
thereto, and the religious, social, and fraternal connections of the juror.
The language of the statute “does not leave the matter to the discretion of the trial judge, but
states that the defendant ‘shall’ have the right to an individual examination of each juror prior to
interposing a challenge.” Blount v. State, 214 Ga. 433, 434 (1958); see also Edwards v. State,
214 Ga. 436 (1958) (companion case to Blount); Ferguson v. State, 218 Ga. 173, 175 (1962).
“[I]t is not within the discretion of the court to deny the right of an individual examination of
each juror prior to the interposing of a challenge (citations omitted), nor any other right of
examination given under [this statute].” Whaley v. Sim Grady Machinery Company, Inc., 218
Ga. 838, 839 (1963); see also Ladd v. State, 228 Ga. 113 (1971).
3.
“Where defendant asserts his right to examine all jurors before striking any of them, it is
reversible error for the trial court to deny the defendant that right.” Thomas v. State, 247 Ga. 7
(1981) (citing Ladd v. State, supra, 228 Ga. 113; Ferguson v. State, supra, 218 Ga. 173; Blount v.
State, supra, 214 Ga. 433); see also Legare v. State, 256 Ga. 302, 303 (1986) (finding that the
defendant in a criminal case “has an absolute right to have his prospective jurors questioned as to
those matters specified in O.C.G.A. § 15-12-133”). Denial of this right is presumed harmful, see
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Hill v. Crowell, 244 Ga. 294 (1979) (finding of harm in civil case), and prejudice need not be
shown. Wallace v. State, 164 Ga. App. 642 (1982).
4.
To the extent that the Uniform Superior Court Rules are at all in conflict with the Georgia
Code and decisions of the Georgia Supreme Court, the Rules must obviously give way. The
cases in Georgia explicitly state that it is reversible error in a criminal case to deny a defendant
the ability to conduct voir dire of potential jurors. Thomas, supra, 247 Ga. at 7-8. To deny Mr.
Bryant the ability to conduct voir dire in this, a capital case, would be to tread upon particularly
treacherous ground in light of the mandates of Witt, Witherspoon, and Morgan. Moreover,
counsel is personally not aware of any death penalty trial in recent history in the State of Georgia
in which the Court has refused to permit the parties to inquire of jurors’ views as they relate to
their questions of substantial impairment pursuant to Witt and Morgan. In this respect it is
noteworthy that even District Attorney McDade has explicitly stated to the Court that he will not
be able to meaningfully exercise his peremptory challenges with only the limited information
elicited by the Court’s generic questions. Mr. Bryant therefore renews yet again his objection to
the Court conducting all relevant voir dire in this case on the issue of prospective jurors’ views
on capital punishment and their ability to follow the law in a death penalty trial.
5.
Counsel is still somewhat confused as to what process the Court actually envisions going
forward, but as best as they are able to tell, the parties will conduct a preliminary panel voir dire
regarding bias not specific to a capital trial, then the Court will question jurors with respect to
Witt/Morgan issues, then the parties will be permitted a brief and scripted follow-up on potential
jurors’ biases as they relate to capital punishment in panel format. It is improper and will be
entirely ineffectual for the parties to question jurors on sensitive and emotional issues regarding
their views on capital punishment in a panel format. Potential jurors will be much less likely to
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open up and express their true feelings in such a format; moreover, some jurors’ views will
almost certainly taint previously “qualified” jurors and cause entire panels of venirepersons to be
unnecessarily stricken for cause. Counsel therefore objects to the Court’s modified voir dire
procedure insofar as it calls for jurors to express their views on the death penalty at least in part
in a panel format.
6.
The defense further notes once again that the undue restrictions that this Court has placed
upon voir dire in this case effectively guarantee that numerous jurors will be qualified and
ultimately seated on Mr. Bryant’s jury who are constitutionally impaired under Morgan. In that
regard, Mr. Bryant notes that Juror #38, who was disqualified by this Court on October 15, 2007,
initially indicated that she would be able to follow the law and consider all three punishments in
response to the Court’s generic questioning prior to individual voir dire. After being questioned
by the parties, however, Juror #38 unequivocally stated at least 3 times that she could never
consider a sentence of life with the possibility of parole for a defendant who has been convicted
of malice murder.
It became abundantly clear that Juror #38 was laboring under the
misconception that she could follow the law only because she did not have any idea what the law
actually was when she answered the Court’s initial questions. This same phenomenon of juror
confusion is illustrated in the several transcript excerpts that Mr. Bryant has attached as exhibits
to his previously-filed motion, entitled Nicholas Jason Bryant’s Memorandum Of Law
Regarding The Scope Of Appropriate Voir Dire In A Capital Case [hereinafter Memorandum on
Scope of Appropriate Voir Dire].
7.
Counsel has previously laid out the constitutional infirmities that this Court is
engendering by inappropriately restricting voir dire in its Memorandum on Scope of Appropriate
Voir Dire. The Court is creating further error by refusing to allow counsel to fully probe jurors
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for bias pursuant to O.C.G.A. §15-12-133. In a capital case, a potential juror is unfit to serve not
only if he would automatically vote for the death penalty, but also if he is impermissibly biased
in favor of a particular punishment without having heard any evidence. Counsel has been
completely precluded from probing the potential punishment biases of potential jurors, and Mr.
Bryant’s rights under §15-12-133, as well as his right to effective assistance of counsel under the
6th Amendment, his right to non-arbitrary procedures under the 8th Amendment, and his right to
Due Process under the 14th Amendment are all being violated.
8.
It is worth final note that counsel has gone out of their way to abide by the Court’s
rulings as they relate to conducting voir dire, however the Court continues to cast unfounded
aspersions on the conduct and professionalism of defense counsel. Counsel of course recognizes
the Court’s role and discretion in conducting an orderly and efficient voir dire proceeding,
however such judicial discretion can never be exercised in such a way as to negate Mr. Bryant’s
rights under the Georgia and United States Constitutions.
WHEREFORE, for these and any such other reasons as may appear to the Court after a
hearing on this motion, Nicholas Bryant respectfully moves this Court:
1) to permit defense counsel to conduct voir dire in this case, and;
2) to lift the multiple undue restrictions that this Court has placed upon the scope of voir
dire so as not to qualify constitutionally impaired jurors.
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Respectfully Submitted,
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Josh D. Moore, State Bar No. 520028
Office of the Georgia Capital Defender
225 Peachtree Street, NE
Suite 900, South Tower
Atlanta, Georgia 30303
(404) 739-5156
__________________________________
S. Boyd Young, State Bar No. 142098
Office of the Georgia Capital Defender
225 Peachtree Street, NE
Suite 900, South Tower
Atlanta, Georgia 30303
(404) 739-5156
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