When they have questions, Fulton judge lets jurors ask them

Fulton County Superior Court Judge Robert McBurney is one of very few judges in Georgia who allows jurors to ask questions to witnesses at trial. Here is McBurney during a court hearing in June. (JOHN SPINK/JSPINK@AJC.COM)

Fulton County Superior Court Judge Robert McBurney is one of very few judges in Georgia who allows jurors to ask questions to witnesses at trial. Here is McBurney during a court hearing in June. (JOHN SPINK/JSPINK@AJC.COM)

It can happen at the end of a searing cross-examination of the state’s star witness and after seemingly perfunctory testimony from a crime scene tech. In fact, it can occur when any witness testifies at trial in the courtroom of Judge Robert McBurney.

After lawyers from both sides finish with their examinations, McBurney then looks over to the jury and asks, “Do you have any questions?”

Allowing jurors to ask questions of witnesses is almost unheard of in Georgia. The Atlanta Journal-Constitution has identified only one other judge who permits it, although there are likely a few others. McBurney has been allowing it almost from the get-go since taking the Fulton County Superior Court bench seven years ago. And he’s a true believer in the process.

“I think that jurors should operate with as much information as possible,” McBurney said in an interview. “… Rather than send jurors back with a blindfold over one eye because they only got to see what the lawyers thought they should see, why not lift that blindfold and give them as much as is legally appropriate to give them?”

The practice will come under close scrutiny in the sensational murder trial involving Claud "Tex" McIver, the Atlanta lawyer who says he shot and killed his wife, Diane, by accident as they drove along Piedmont Avenue. McIver's trial is set for March.

McBurney cites two primary reasons for allowing jury questions. One involves the weighty decisions jurors must make — such as in a criminal case where a defendant faces a life sentence, or in a civil case involving tens of millions of dollars in potential damages.

“Why would we want to limit the information they get?” McBurney asks. “When you have a dozen jurors, all different people, someone’s going to come up with a question that is relevant and will assist them in their search for the truth.”

Also, McBurney said, trials are now conducted in “the era of Google.”

“It’s foolish to think if jurors don’t have an outlet they might not try to scratch that itch,” he said. “Cases are having to be retried all the time across the country because jurors are accessing information outside the supervision of the judge.”

McBurney does not allow jurors to ask their questions directly. He tells jurors to write down any questions they have and pass them up. He then looks over them and allows lawyers from both sides to read them. Sometimes the lawyers object to a question. McBurney has the final say on which questions will be asked, and he tells the jurors before the trial that he will not read questions he would not allow the lawyers to ask.

After McBurney asks a witness the questions, he then allows lawyers from both sides to follow up.

Some lawyers cringe at the thought of this.

"Good lawyers know exactly what question not to ask a witness," criminal defense attorney Don Samuel said. "And if the other side doesn't pick up on that and fails to ask it, but then the jury asks the question, well, you're out the window on that."

Still, Samuel said he has found the practice quite useful because it changes the dynamics of a trial.

“Usually you go through a trial and, whether it’s a two-day trial or a two-month trial, you read jurors’ body language,” he said. “You do your best to try to gauge what the jury is focusing on or what seems important to them. But it’s all just guesswork. Whereas when the jurors are asking questions you learn in real time exactly what is important to them.”

Atlanta attorney Don Samuel (left), one of Claud “Tex” McIver’s lawyers, with attorney Richard Deane during a hearing on June 18, 2013, in the Atlanta Public Schools test-cheating case. KENT D. JOHNSON/ AJC

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McBurney, a former state and federal prosecutor, said he got the idea from Senior Judge Reggie Walton, who has overseen numerous high-profile trials in the U.S. District Court in Washington.

In an interview, Walton recalled telling lawyers he’d be allowing jury questions in the trial of I. Lewis “Scooter” Libby, former Vice President Dick Cheney’s top aide. “They were appalled,” Walton said.

But after the trial, in which Libby was convicted of obstruction and lying to the FBI, lead prosecutor Patrick Fitzgerald wrote in a law review article that the practice turned out to be a terrific idea.

“The jurors’ questions actually kept them engaged but also really helped counsel in the trial on both sides,” he said.

Said Walton, “Some may perceive a trial as a sporting match where the best lawyer wins. I say a trial should be about finding the truth.”

» RELATED: The AJC 'Breakdown' podcast, Season 5: The McIver Trial

Fulton County State Court Judge Wes Tailor agrees. For years, he has allowed jurors to ask questions in civil cases and recently allowed it for the first time in a criminal trial.

“It’s hard to think of a type of learning anymore without some type of interchange between the teacher and the student,” Tailor said. “During a trial, you can let the jurors sit there passively and never be involved at all, hoping they’re paying attention and not missing anything. Or you can give them a chance to feel like they’re involved.”

In October 2016, the Georgia Supreme Court unanimously upheld the murder conviction of an Atlanta man whose lawyers challenged McBurney’s practice of allowing jury questions. The ruling noted that of the more than 70 jury questions asked during that trial, at no time did McBurney intimate his opinion about the evidence or the guilt or innocence of the accused.

In finding no harm with the practice, the court also said that “trial courts must be cautious in soliciting and asking jury questions, particularly in large numbers.”

Criminal defense attorney Brian Steel during a hearing on June 12, 2013, in the Atlanta Public Schools test-cheating case. (BOB ANDRES/BANDRES@AJC.COM)

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Early in 2017, Adam Pina stood trial before McBurney for attempted murder for shooting a man twice during a fight at a Sandy Springs pool hall.

Pina's lawyer, Brian Steel, said he was extremely hesitant about the prospect of jury questions. And when Pina took the stand, they had quite a few for him. For example, one asked whether Pina had been in trouble with the law before, Steel said.

Pina had been acquitted of a prior shooting in Massachusetts. But before trial, McBurney granted a defense motion to keep out any mention of that previous case. So he disallowed that jury question about Pina’s past.

Steel said he left the trial, in which Pina was found not guilty, with a different take on jury questions.

“You’re reading their thoughts,” he said. “Who better to hear what’s important to them than from the trier of fact?”