Issue before the Court: Whether the trial court erred in not conducting a Buford inquiry of a juror who interrupted defense counsel’s cross, told him that he was acting in an unacceptable manner, and threatened to leave the courtroom if he did not stop?

 

Held: We don’t know, since the Court did not reach the issue because of a purported lack of preservation.

 

CAL Observes: This decision was not about Buford, but about preservation.   On one side are the stringent-appliers of the preservation rule (in criminal cases, anyway).  These judges are in the majority on the current Court,  and were in the majority here –  in a decision penned by Judge Rivera.  On the other side are the common-sense-appliers of the rule.  The chief proponent of the latter is Judge Wilson (taking over this role from former Judge Robert Smith).  He was joined in dissent by Judge Fahey – a vote coming seemingly out of left field.  In response to the juror’s actions, the lawyer told the judge: “And I think based on her outburst, she not only put herself in the position where she should be removed, but I think she has poisoned the jury as well.”  The lawyer said in the next sentence that the juror was “grossly unqualified.”  Per the majority opinion, all the lawyer did was ask for a mistrial – which he was not entitled to, not a Buford inquiry and not the striking of the juror. Judge Wilson, quoting the above language, thought that the lawyer additionally preserved the issues of (a) whether the juror should be struck (a proposition that even the trial assistant agreed with) and (b) logically, whether an inquiry should have been made of the juror.  Two big take-aways for trial lawyers: (1) “Whining” does not equal preservation, so if you want the judge to do something, ask her directly to do it. (2) Objections by the co-defendants’ attorneys – who did ask for these things but were not the appellants here – do not preserve an issue for the defense counsel who does not “join” her colleagues.  One lawyer’s objection does not, by itself, preserve an issue for co-counsel.  And we mean never.