Judge Amends O'Brien Jury Rulings
Edited Questionnaires to Be Made Available to Members of Media

By Joseph A. Reaves
The Arizona Republic [Phoenix AZ]
January 16, 2004

The judge in Bishop Thomas J. O'Brien's hit-and-run trial agreed Thursday to amend several of his earlier rulings and provide greater access to the jury-selection process, which is expected to end today.

Responding to a request from The Arizona Republic and 12 News, Judge Stephen A. Gerst agreed to release partial transcripts of interviews of 32 potential jurors who were questioned behind closed doors this week. He also announced he would make public edited versions of questionnaires filled out by all 155 prospective jurors.

"The integrity of the criminal justice system and of our court is at stake any time we close even a portion of these hearings," attorney David Bodney argued on behalf of the media.

At the start of jury selection this week, Gerst asked 155 potential jurors to fill out 2?-page questionnaires and told them their answers would be kept private.

Based on those answers and other questions posed in open court, Gerst announced he was closing the courtroom for two sessions so attorneys for the defense and prosecution could follow up on personal issues raised by 32 of the prospective jurors.

"The court finds that it is necessary to close proceedings for the limited purposes described to prevent embarrassment and/or emotional disturbance of prospective jurors," Gerst ruled Tuesday.

The judge amended that decision Thursday after a 26-minute hearing at which Bodney cited U.S. Supreme Court precedents that the public has an overwhelming "presumptive right of access" to criminal proceedings, including jury selection, known legally as "voir dire."

Gerst kept the courtroom closed Thursday morning to complete interviewing the last of the 32 prospective jurors who had been told they would be questioned in private. However, he promised to provide public access to transcripts of the closed-door interviews "as soon as reasonably practicable."

Those lengthy interviews need to be transcribed by a court reporter, then screened by the judge and attorneys to ensure all "deeply personal" information is blacked out.

Gerst said the same process would be used for the 2?-page, 16-question surveys that all potential jurors filled out Monday. Those edited questionnaires, the judge said, might be available within 24 to 48 hours.

Pointing out he had previously assured potential jurors their questionnaires would be confidential, Gerst said he would tell them about the change. He stressed, however, any information that could identify a prospective jurors, including juror numbers, would be stripped from the questionnaires before they were released.

"Quite frankly, we had some startling answers generated," he said.

Gerst reopened the courtroom Thursday afternoon and listened as attorneys for the defense and prosecution questioned the final pool of prospective jurors. Prosecutor Anthony Novitsky wrapped up his questioning and defense attorney Patrick J. McGroder was expected to finish before lunch today.

Attorneys for both sides will meet with Gerst to discuss which of the remaining 49 jurors should be dismissed for legal reasons; then each side will be allowed to remove up to six other candidates without giving a reason.

Once those prospects are eliminated, 12 jurors will be seated. Four will be chosen randomly as alternates after all testimony is heard. Only eight jurors will decide a verdict.

Testimony is scheduled to begin Tuesday. Gerst has said the trial could end by Feb. 9, but has warned jurors to prepare to stay until Feb. 20.

O'Brien, 68, is charged with striking a pedestrian on a central Phoenix street last June and leaving the scene of the accident without rendering aid or calling police. He is believed to be the highest-ranking U.S. Roman Catholic leader to stand trial on felony charges.

Reach the reporter at or (602) 444-8125.

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