Reporter's Notebook: Finding a Jury of John Evander Couey's Peers

MIAMI – Two weeks ago, during the first day of jury selection here at the Miami-Dade County courthouse, Citrus County Judge Ric Howard explained that he would focus on two things during the first round of questioning:

1. Pre-trial publicity. Did the potential jurors know about John Evander Couey’s confession, which the judge had thrown out?

2. "The hardship factor." Would the potential jurors endure significant personal or financial burdens if they were sequestered for three to four weeks on a first-degree murder trial?

While he proceeded with his probes, Howard hit some speed bumps: several jurors with English proficiency problems.

"Do you think you understand English well enough to be on this jury?" Howard would ask. "You can be able to speak English well, but there will be medical terms and other terms where you will have to be proficient." This was typically followed by a "you are hereby released from your jury duty with the sincere thanks of the court."

The attorneys were getting nervous. They knew jury selection would be a long haul; it was why they moved the entire trial from Citrus County to Miami in the first place -- but this was unexpected. They had enough problems just trying to find a juror who had never heard of 9-year old Jessica Lunsford and the man who admitted he buried her alive.

By the second day, Howard got organized about what it meant to find himself not only trying his first capital murder case, but his first in the 305 area code. He had a Spanish translator address the entire jury pool. If there was people who were not comfortable enough with the English language, they could raise their hands and be dismissed promptly without inefficient hullabaloo.

Then came the hardship factor. After inquiring about the nature of the jury’s bosses, and whether employers would let their workers serve, and even allowing jurors to call in to see how their employers felt about it, the court was forced to release many prospects for what they said was an "undue financial hardship."

After lunch, Howard sat up with what looked like renewed focus and began instructing the jurors that their employers could be held in contempt if they tried to fire any of the selected jurors, or to halt their pay. If there weren't laws to protect civil service, the judge explained, you would have a jury of the retired, or the unemployed (his only jurors to make the cut as he was making the very point ) -- not a jury of your peers, as the law instructed.

This was to be his primer for the nearly 300 courtroom participants who would come before him. Judge Howard opened his comments to each pool by saying that jury duty was the most important of the three civil service duties most Americans face. (The other two, he said, are voting and paying taxes.) And he asked the courtroom to remember our brothers and sisters fighting in Iraq and Afghanistan, and he reminded that any one of them would want to trade places to be on a jury.

On Tuesday this week, those sentiments rang home when a potential juror offered that she had a son serving in Afghanistan. And when the defense asked another woman, "What did you think when you got your jury summons, do you think you are up to the challenge?" she replied, "It just makes me proud to be an American."

In the first week the initial concepts were easy enough, and pleasant. But soon the defense began to get uncomfortable with the sentiments a few of the jurors expressed during routine questioning. They asked the judge to allow both teams time to engage in a line of questioning regarding burden of proof.

This resulted in several painstaking exchanges in which they asked questions like, "Do you expect us to prove anything to you?" and "What if we just sat there and played cards?" which resulted in many dismissals).

By the next day, Howard reorganized and resorted to addressing all the jurors at once, stating, "Do you understand that the defendant is innocent until proven guilty, that the state has to prove his guilt beyond a reasonable doubt and the defense does not have to prove anything? Do any of you have a problem with that?"

Later attorneys would go so far as to ask, "if you were writing the constitution 200 years ago, would you leave that in there or take it out?"

For anyone who made the first cut, the concepts got even harder for the second:

-- Will you hold it against Mr. Couey if he exercises his right not to testify?

-- If he does testify, are you less likely to believe him just because he is the accused? Will you have trouble issuing a ruling without hearing from Mr. Couey?

-- Mr. Couey is charged with four counts. You must rule on each count independently based on four elements. If you have three elements which lead you to believe he probably did the fourth but there is no hard proof, how would you rule?

-- Not every guilty first-degree murder case in Florida warrants the death penalty. But many people are either for or against the death penalty. If the aggravating factors were there, could you look up at the judge and send that man to die? If they were not there, could you recommend life?

Many answered that they didn’t know, that they would have to experience the trial live to know how they would feel and how they would react.

Those jurors were dismissed. This was not supposed to be about feelings. This was about whether a juror could follow a judge’s orders and follow the law as he instructed.

In time for opening statements on Thursday, the judge offered a few more nuggets.

-- Once the trial starts, jurors cannot ask any questions. If you try to talk to the lawyers in the hall and they ignore you, they are not being rude. They are simply not to give any illusion of impropriety on their part.

-- You are not to investigate the case on your own, by reading any outside materials or visiting the site where the crime occurred. You are permitted to take notes. If one wants to take notes, all the pool will receive a pad. You must turn over that pad to the bailiffs, who will collect them at every recess.

A jury of his peers will hear and view only the testimony and evidence that is presented to them inside the walls of courtroom 4-1 before they decide whether John Evander Couey was responsible for the black bag Jessica Lunsford's body was found in, along with a stuffed animal her dad won for her at the fair, buried on the property where Couey was living on the day the crime occurred.