Journalism in the Public Interest

Can You Judge Etan Patz’s Accused Killer Fairly? Here Are 109 Questions to Start

Potential jurors in the controversial missing-child case have to disclose mental health and drug histories.

(Hannah Birch/ProPublica)

Understood broadly, jury duty is an honor and privilege. Experienced daily, it can feel like a pain in the neck – the hours spent waiting, the complications of work or child care, the likelihood of ultimately being, well, dismissed.

But for the scores of people called last week to Part 42 of State Supreme Court in Manhattan, jury duty has come with an additional burden: the disclosure of a fair amount of quite personal information – about their mental health history, their possible drug use, any history of being fired and the health and criminal backgrounds of their family members.

In Part 42 last week, Justice Maxwell Wiley began the process of seating a jury for a controversial and emotionally charged case, the trial of the man accused of abducting and killing 6-year-old Etan Patz in 1979. The trial has the chance to close one of the country's most famous missing child cases, and it could last, according to Wiley, from two to three months.

Each potential juror was asked to fill in a formal questionnaire, one way lawyers safeguard against possible bias or identify potential sympathy. Tales of drug use and psychiatric history will surface in the Patz murder trial, so several of the questionnaire's 109 inquiries probe into areas that are deeply personal, even embarrassing.

Here is Question 80:

"Have you, a family member or close friend ever abused drugs or alcohol?"

And then Question 81:

"If yes, identify your relationship to the person, the substance abused and provide any significant history."

This line of questioning is not entirely uncommon. And the judge has assured the jurors that the information will be kept secret by the court and the lawyers involved.

Still, detailing a loved one's struggle with dependency has to be awkward. And disclosing the substance abuse of a friend might lead to some discomfiting chats with old pals around the holidays.

And it is far from all Wiley has asked jurors to provide.

Questions 87 through 90 cover some more sensitive ground. Three of them — 87, 88, 89 – ask if the potential juror or a close friend or family member have ever been seen by a psychiatrist, treated by a mental health professional, or been prescribed medication for a psychiatric disorder.

"If 'YES' to 87, 88 or 89, please explain," reads Question 90. "Please include a description of your relationship to the person, the name of the disorder and the name of any medications that person has taken; and the approximate date of use."

Pedro Hernandez, the former Manhattan bodega clerk who confessed to strangling Patz in an unexplained spasm of violence 34 years ago, has a history of mental health and drug abuse problems. His defense team has argued that his psychiatric issues are profound and explain what the lawyers intend to prove was a false and coerced confession. Hernandez's drug use, they suggest, is consistent with people who suffer, often untreated, from mental disorders. Prosecutors have sought to minimize Hernandez's psychiatric history and emphasize his drug use, suggesting it is but one example of a life of repeated criminal misconduct.

Some potential jurors who filled out the questionnaire last week are expected to be questioned by lawyers and the judge this week. It is destined to be a fascinating trial. Patz's body has never been found. One of the witnesses the defense aims to call to call is the convicted pedophile who, for years, was considered a prime suspect and who was found liable for Patz's death in a civil proceeding a decade ago. The prosecution on Monday made an 11th-hour notification to Hernandez's lawyer that it planned to have a previously undisclosed informant testify. The New York criminal justice system has been rocked in recent years by a spate of wrongful convictions, and the performance of the detectives in the Hernandez case is sure to face scrutiny. They opted, against the wisdom of New York state court officials, not to videotape the early hours of Hernandez's interrogation.

The publicity surrounding the case – Hernandez was arrested and charged two and a half years ago – has been such that Wiley is not requiring that jurors have never heard of the case. His chief concern, the questionnaire suggests, is finding people who will reliably promise to avoid coverage of the case once it begins.

 Indeed, the efforts to control juror behavior in the Internet age – not only preventing them from looking at coverage of the case and trial, but also from doing their own research – have proved increasingly challenging in recent years. Plug "media" and "juries" and "convictions overturned" into Google and up pop examples of recent juror misconduct. Meanwhile, the John F. Kennedy School of Government at Harvard University, in a presentation to state court leaders, received an array of reports from judges and jurors underscoring just how problematic the easy availability of information has proven.

Judges reported jurors accessing social media while in the courtroom. Jurors in great numbers said they thought it both proper and necessary that they be allowed to conduct their own research.

"The jury trial clearly is where new ways of truth seeking are most likely to collide with the requirements of traditional court processes," concluded one report to the Kennedy School. "The potential casualty is fairness."

The jury questionnaire for the Hernandez case, in addition to its requirement on disclosing past drug use and mental health histories, is replete with the more expected inquiries. Are you related to a police officer? Have you ever been involved in litigation? Is English your first language?

But it's also full of questions reflecting both modern times and some other less-than-clear concerns and curiosities.

Question 55: "Do you maintain or post to a blog?"

Question 71: "Have you, a family member, or a close friend, ever worked for the New York City Transit Authority?"

Question 36: "Please describe what your hobbies, interests, or spare time activities are, or what you would like them to be if you had more spare time?"

Question 11: "Do you have any grandchildren?"

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