LANCE WILLIAM HAYES v. STATE OF MARYLAND
Court of Special Appeals, Eyler, Filed May 1, 2014*,
Voir Dire- Failure to propound a required voir dire question upon request can not be cured by asking the question to the seated jury.

As part of voir dire, defense requested the court read the question: “Mr. Hayes is an African American. Would that fact in any way impact your ability to be fair and impartial?”

For some unknown reason, the prosecutor objected noting “all of the witnesses are African-American. The defendant is African-American.”

When the defense protested further

The prosecutor reiterated that the court was not required to propound Question 8 because a majority of the venire panel, as well as the victim and all of the State’s civilian witnesses, were African-American.

While that may have been an accurate statement, and even though Hernandez is a 1999 decision (requiring the question be propounded if requested) that a prosecutor trying a shooting case should be aware of, let’s assume the prosecutor wasn’t aware of it for some reason.

Even given that, WHY WOULD THEY RISK AN OVERTURNED CONVICTION ON THAT QUESTION? Did the prosecutor fear that the panel was unaware of the defendant’s race and look on him more favorably once it was brought to their attention that he was African-American?

In the end, the prosecutor read Hernandez over lunch and returned, letting the court know that they were wrong. The prosecutor suggested that the question be asked of the seated jury and graciously suggested that with that cure the defendant withdraw his original objection.

The defendant, well aware that the case was won even if it was lost, declined the state’s offer. The court noted that declining the cure in this case was irrelevant, as the damage had been irreparably inflicted.

The defendant was convicted, with the unsurprising result that it is now reversed.

On appeal, the state argues that the question wasn’t “relevant” and therefore didn’t need to be asked. The CoSA, in a footnote, clarified the meaning of “ordinarily” in Hernandez

a question whether a prospective juror has a bias against Hispanics in a case in which the defendant is not Hispanic, is not related to or associated with anyone Hispanic, in which there are no Hispanic witnesses, and in which Hispanic heritage has no role probably would not be relevant to uncovering bias, certainly against the defendant, and therefore would not be required to be asked.

* Though it was not posted on Maryland Judiciary until May 2, 2014