In Kervick v. Silver Hill Hospital, 128 Conn. App. 341 (2011), the Appellate Court held that the existence of an inflammatory newspaper article, coupled with the fact that the jury had not previously been instructed by a judge to avoid media coverage, was sufficient information to indicate the possibility of juror partiality and, as such, the court was required to conduct a preliminary inquiry to this effect. The trial court’s denial of plaintiff’s counsel’s request to poll the jury as to its exposure to the article constituted an abuse of discretion and, at a minimum, jeopardized the plaintiff’s constitutional right to an impartial jury. Therefore, the judgment of the trial court was reversed, and the case was remanded for a new trial according to law.
- Over the Thanksgiving weekend, between the time the jury was impaneled and the commencement of evidence, a newspaper article appeared in the New York Times entitled “Lawsuit Over a Suicide at a Hospital for the Elite.”
- Although the jury had been impaneled at the time the article was published, a judge had not yet instructed the jury to avoid media coverage of the case.
- Four days later, on November 27, 2007, the first day of evidence, counsel for the plaintiff requested that the court poll the jury as to exposure to the article to determine whether any of the jurors had been unduly influenced thereby.
- The court denied the request concluding that it would be more prudent simply to instruct the jury to ignore anything in the press or on the media.
- The jury returned a verdict for the defendants.
- The plaintiff moved to set aside the verdict, which was denied.
- The Appellate court reversed the decision of the trial court.
Article first, § 19, of the constitution of Connecticut, as amended, provides in relevant part: “The right of a trial by jury shall remain inviolate….” Of course, the right to a jury trial would be a mere nullity were it not for the guarantee of jury impartiality. “To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment [we previously have held, pursuant to our supervisory authority over the administration of justice, that] a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality.” The form and scope of that preliminary inquiry rests within the sound discretion of the trial court. See State v. Merriam, 264 Conn. 617, 672-73 (2003).
Here, none of the safeguards of jury impartiality identified in Merriam were present: 1) at no time prior to publication of the article were the jurors in this case instructed by a judge to avoid media coverage of the ensuing trial; 2) neither parties’ counsel had the opportunity to question prospective jurors as to their exposure to the article, as the article had not yet been published at the time of voir dire; 3) the article here was extensive, factually detailed and so overtly inflammatory that it was difficult to conceive how a juror would remain impartial if exposed to its contents; 4) the plaintiff’s counsel requested that the court make the specific inquiry into whether any juror had read the article. Indeed, the trial court was unable to address the possibility of jury partiality without inquiring into whether the jury members had even become aware of the article itself.
The court was obligated to conduct a preliminary inquiry to evaluate the extent, if any, of juror bias as caused by exposure to the article. Of course, by the time the court made this ruling, the article had been published, and the possibility that it had already prejudiced jury members could not be cured with a prophylactic instruction. The fact that the court declined to consider fully the request of the plaintiff’s counsel to poll the jury in the absence of the parties’ agreement in this regard was also improper. “Where, as here, the possibility of jury bias is adequately presented to the court, it is the obligation of the court, not the parties, to determine the appropriate procedures to be employed to ensure the jury is impartial.” (Emphasis added.)