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Are jury questions useful during trials? Foreman in Redwine case thinks so

Jurors have been allowed to question witnesses since 2004 in Colorado
(Adobe Stock)

On a lined piece of notebook paper marked “Request #1 July 16th, 2021” the jury foreman in Mark Redwine’s murder trial asked for evidence as the jury deliberated.

Collin Parker wanted to review a map. “There was a triangular distance map,” wrote Parker. “Can’t find it in the exhibits. Can we please have it?”

Below his question, Parker made a crude drawing of what he remembered the map looked like during trial.

Underneath Parker’s question was 6th Judicial District Judge Jeff Wilson’s handwritten answer, telling him where to find the map he requested. “It’s exhibit 223 located in numerical order in the official binder of exhibits,” wrote Wilson.

The map had been in the jury’s evidence file among the pages in their voluminous six-ring binders the whole time. They had merely missed it among the mountain of discovery they’d been given.

“The map was important to us because it provided a good scope of the distance from which all of the remains were scattered and just how great those distances were,” Parker, 26, told The Durango Herald. “This was a pretty big deal to us because we had a couple of jurors that weren't quite settled on second-degree murder and some of us thought that the distances were really substantial evidence.”

A question submitted by jurors and the judge’s answer during deliberations at the trial for Mark Redwine, who was found guilty of second-degree murder and child abuse resulting in death. (Courtesy of 6th Judicial District Court)

During deliberations, the Redwine jurors asked two other questions before they came to a decision on Redwine’s fate. One was a request for the transcript of Denver Special Agent Jonny Grusing’s testimony, and the second, for his official report. Wilson rejected these final jury requests explaining, “The jury is to rely on its memory and the exhibits that have been admitted into evidence to decide this case.”

Parker said the jurors had anticipated they wouldn’t be granted Grusing’s report or the transcript, and were already close to a decision by the time the judge gave them the thumbs down.

For Parker, though, being able to ask questions was a lifesaver in a trial as complex as the nearly nine-year investigation into the boy’s death.

“For a lot of the jurors, it was nice to know that we would be allowed to ask questions if we needed to and we would not have to solely rely on our humongous binder of evidence, our notes and our memories,” Parker said.

Not everyone is a fan of a jury’s ability to question witnesses during trial.

In Colorado, jurors are allowed to ask questions after the attorneys’ direct and redirect of a witness. The questions are always written down and given to the court clerk who then brings them to the judge. A bench conference with lawyers from both sides follows with a chance for them to object.

Jeffrey R. Wilson, chief judge of the 6th Judicial District, speaks with prosecutor Micheal Dougherty, left, and public defender John Moran, at his bench June 22 during the trial for Mark Redwine. (Jerry McBride/Durango Herald file)

Retired 17th Judicial District Judge Ed Moss says that all courtrooms and judges are different, but he allowed witnesses to answer 90% to 95% of jury questions. “I think they are absolutely wonderful,” Moss said of the practice.

Some lawyers are afraid jurors will become advocates and lose their impartiality. Others consider jury questions a waste of time.

“I’ve never liked it. I want control of the trial,” Colorado trial lawyer and former Denver Chief Deputy DA Craig Silverman wrote the Herald in a text message. “I am old school and do not like jurors being quasi-litigators.”

Silverman said he’s often mindful that a juror will be offended if the question is thrown out because Silverman objected to it. Said Silverman, “If a juror does not get his question asked, does that juror take offense?”

But Moss says jurors often ask perceptive questions that attorneys don’t think to ask or didn’t want to bring up for fear it would hurt their case. Moss said jurors should be as prepared as they can to be fair to the defendant.

“Many times a juror will miss something,” he said. “They’re given a pad of paper or notebook. The most fascinating question is when there’s a subject which arose from testimony that neither of the lawyers asked.”

Colorado was one of the first states to allow jury questions. The practice started in the state on July 1, 2004, during a push for jury reform across the country.

“Members of the public owe a duty to report for jury service when summoned; and, the court system owes a corresponding duty to attempt to make the best possible use of the juror’s time, and maximize the likelihood of good decision-making in jury trials,” Colorado Supreme Court Justice Rebecca Kourlis wrote.

Kourlis, who was the chairperson for the Supreme Court Committee on Juries, added that the jury reform effort was aimed to make jury decisions as informed as they could be.

But allowing jurors to ask questions of witnesses during trial didn’t come without a fight. Two defense lawyers whose clients were convicted after trials in which jurors were allowed to ask questions filed an appeal to overturn jury questions. They said the questions were detrimental to a defendant’s right to a fair trial.

In summer 2005, the Colorado Supreme Court voted 5-1, turning back those appeals. Jury questions were in Colorado courtrooms to stay.

In the 2015 Aurora theater shooting trial, jurors asked hundreds of questions during the four months of testimony. For example, during the first two weeks of trial, as lawyers were wrapping up the testimony of a neuroscience professor, a juror scrawled out a question for her:

“Did James Holmes ever seem disconnected from reality?” The question got to the crux of what was at stake in the trial: Was the theater shooter legally insane when he began shooting?

Holmes was found guilty on all 165 counts in the July 20, 2012, attack that left 12 dead and 70 others injured. The jury decided against the death penalty, opting for one life term for each person murdered, plus 3,318 years.

The Mark Redwine trial jury deliberated for a day before it found him guilty of second-degree murder in 13-year-old Dylan Redwine’s disappearance.

Parker said the ability to question witnesses and to ask questions during deliberations helped clear things up in a very complicated and voluminous case: “I was not intimidated to ask questions of the court because this was a really serious issue and we were not going to hesitate to use any resources at our discretion.”

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