RENO, Nev. (AFX) - Judge Janet Berry has seen it before.Ask prospective jurors if they have any racial prejudice or biases and rarely will anyone acknowledge it. 'You'll get a lot of people look at you with blank faces,' Berry said.
So when jury selection is scheduled to begin in a multimillion dollar discrimination suit against the Walgreens drug store chain Monday, Berry intends to take steps to ensure an impartial panel is seated -- including questioning jurors privately in her chambers, if necessary.
'Folks are hesitant to answer your questions publicly and candidly,' the Washoe County district court judge said. 'Most, if they can say it privately and candidly, will be honest.'
Conducting such questioning anywhere other than in an open courtroom raises concerns among some because judicial proceedings in the United States are supposed to be open and accessible to the public to guarantee fairness and accountability.
'Otherwise, no one has any idea what is going on in the private discussions,' said Patricia Refo, an Arizona lawyer who chaired the American Bar Association's American Jury Project, which developed the association's modern jury principles in 2005.
'It is, after all, the people's justice system,' Refo said.
Refo and others acknowledge the behind-closed-doors approach to weeding out biased jurors has met with growing acceptance in recent years as a way to address sensitive issues.
'Any time you are inquiring of people about either sensitive matters or matters that might be deemed embarrassing, efforts to allow jurors to respond to those questions privately may well be in order,' Refo said from Phoenix.
In the civil lawsuit filed in Washoe County in June 2003, Bruce Johnson, 44, and three other black men from Houston say they were discriminated against at a Walgreens store in downtown Reno. The men said that after they complained about the quality of a photograph processed at the store in February 2003, the clerk shouted a racial slur, slammed a door and refused service.
Although the lawsuit does not specify an amount, Johnson has said each of the men is seeking $2.5 million in damages.
Walgreen Co., based in Deerfield, Ill., denies any discrimination occurred.
'We don't tolerate discrimination of any kind. We insist on fairness in our employee relations and our customer service,' company spokesman Michael Polzin said.
Berry, who clerked in federal court in Louisiana and for the Nevada Supreme Court before she was appointed a Reno judge in 1992, said during a recent pretrial hearing that if she questions any prospective jurors in her chambers, lawyers for both sides will be allowed to ask questions. The questioning -- known as voir dire -- would take place behind closed doors but on the record with a court reporter making a transcript available for public review.
William Dressel, a retired judge from Colorado who is president of the National Judicial College and a member of the National Center for Courts and Media Governing Board, said many judges address racial prejudices in a written questionnaire given to prospective jurors but that more are adopting the tactic Berry plans to use.
'What you are trying to do is put people at ease. It's a technique widely used when you have a sensitive matter and you want jurors to think about it and talk about it,' Dressel said.
'You want to encourage them to be honest with themselves and with you, and it's very difficult for any of us to admit we have a bias or a prejudice.'
Richard Siegel, a political science professor emeritus at the University of Nevada who serves on the board of the state chapter of the American Civil Liberties Union, said he has been in jury pools in which prospective jurors have been willing to voice their biases against such people as drug dealers and child molesters.
'But it is not socially acceptable, not politically correct, to make public your racial bias,' Siegel said.
'There's probably a better chance in regard to homophobia for somebody to say it out loud. But we've probably reached a point where expressing anti-black sentiment has almost a taboo quality to it.
'It's probably slightly to the benefit of the plaintiffs in this case to let them (jurors) air that sort of thing,' he said.
Ian Silverberg, a Reno lawyer representing the plaintiffs, told the judge he didn't think a written questionnaire would be sufficient to ensure an impartial jury.
'I think in a case where race is an issue that is important for both sides, we should be able to question the jury directly,' he said.
Clark Vellis, a Reno attorney representing Walgreens, supported the private questioning 'so jurors don't feel intimidated and like they are in some sort of fish bowl.'
Berry said racial bias isn't the only issue that may come up in her chambers. She said she'll also allow Walgreen Co.'s defense team to question jurors about their views of giant pharmaceutical retailers.
'She went out of her way to say that people may have biases against corporations in America and that would be fair game, too,' Siegel said.
Berry said she will tell prospective jurors that they 'may not be comfortable talking about bias or prejudice, but this is a critical issue to this case.'
'We'll spend a lot of time on that in this case, no doubt.'
Refo said lawyers and judges alike 'think more now about the trial from the perspective of the potential juror than we used to.'
'Hopefully that makes it better not only for the prospective juror but for the litigants in the case because hopefully you'll get more information than you would have gotten before when less care was taken to protect the privacy of the juror,' she said.
'The important thing is, of course, that it always be done on the record, so there is literally a record of what is said and what happens.'
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