TAE WON KIM, Appellant,

v.

ED WALLS, Appellee.

Case No. S01G1569

The Georgia Trial Lawyers Association ("GTLA") offers this post-Argument supplemental amicus curiae brief to respond to and address some of this Court’s concerns as expressed during the oral argument of this case on Tuesday, April 16, 2002. GTLA respectfully asks this Court to adopt and/or reinforce the substantive, instructional judicial guidance offered by the Georgia Court of Appeals in Walls v. Kim, 250 Ga. App. 259, 549 S.E.2d 797 (2001).

Before Walls v. Kim, "rehabilitation" as too often practiced in Georgia was intended to "rehabilitate" the record, not the juror.

Such "rehabilitation" was incongruous. It obviously conflicted with the presumed purpose of any court -- to seek the truth. That the incongruous conflict comes at the very commencement of the trial is all the more harmful, and embarrassing to all who hope seeking truth is the primary purpose of any court.

Several of the justices’ questions during oral argument on April 16, 2002 concerned the applicability of Walls to criminal cases, particularly those where the death penalty could potentially be sought. Chief Justice Fletcher noted that the issue of juror rehabilitation arose most frequently in death penalty cases, and Justice Hines wondered how affirming Walls would affect criminal trials. Chief Justice Fletcher questioned whether Georgia should allow different rules for a trial judge’s jury rehabilitation in criminal and civil cases. Justice Carley specifically inquired, "[i]f we affirm the Court of Appeals, will we be chilling [a] trial judges’ ability to rehabilitate a juror?"

This post-argument supplemental brief by the GTLA is an effort to address the Court’s legitimate and thoughtful concerns about the applicability of Walls to criminal cases. To put it succinctly, Walls can exist harmoniously in the jury selection process in both civil and criminal cases, including those criminal cases where the death penalty is or may be sought, because Walls seeks to eliminate across the board the inappropriate practice of trial judges coercing a contradictory response from an intimidated prospective juror who has already manifested bias or an inability to be fair an impartial.

The Walls v. Kim decision does not remove the trial judge from the jury selection process. The role of the trial judge is, instead, increased. As the Court of Appeals decision observed, "the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury." Walls v. Kim, 250 Ga. App. 259, 260, 549 S.E.2d 797 (2001). Consistent with that role, the trial judge should endeavor, through neutral questioning, to make sure answers by a juror are not merely the product of confusion. Coercion is inappropriate and should be unnecessary.

The GTLA is very mindful of the fact that responses from prospective jurors can be, and often are, confusing to counsel and the trial court, that prospective jurors are usually intimidated by the process and by the setting and are unaccustomed to publicly stating personal views about sometimes sensitive subjects. As Justice Carley expressed it in Brannan v. State:

Brannan v. State, No. S01P1789, 2002 WL 445272, at 6 (Ga. Mar. 25, 2002).

Walls v. Kim does not impair the ability of a trial judge in a criminal case to question a potential juror using the standards enunciated by Wainwright v. Witt, 469 U.S. 412 (1985) and the "statutory questions" set out in O.C.G.A. § 15-12-164. Neither requires an effort to coercively "rehabilitate" a juror whose answers have manifested apparent bias or an inability to be fair and impartial. Long before Walls this Court had ruled that it was improper for the trial court to "instruct" the prospective juror "on the desired answer" instead of simply making "a neutral attempt to determine the juror's impartiality." Walker v. State, 262 Ga. 694, 696 (2), 424 S.E.2d 782, 783 (1993). On the other hand, it is proper for the trial court to ask questions "designed to clarify the prospective juror's views before ruling on qualification." Brannan v. State, 2002 WL 445272 at 6 ("The trial court's questions in this case were not an attempt to achieve a desired answer, but rather were a 'neutral attempt to determine the juror's impartiality.'")

It is the function of counsel to discover through voir dire whether a prospective juror may be biased. It is the function of the trial judge to decide whether to strike such a juror for cause. As both the Court of Appeals and this Court have previously directed, to do that the trial judge certainly should make sure the apparent bias isn't merely the result of confusion, apprehension, uncertainty, perplexity or ambiguity on the part of the prospective juror. But if after that neutral effort doubt remains, then justice and adherence to the rule that no party has a 'right' to any particular juror requires that the prospective juror should be stricken for cause.

Coercion and 'rehabilitating' the record should be out. The Court of Appeals decision Walls v. Kim is both right and essential to justice.

Respectfully submitted,