Convictions in doubt over juror questioning

Spokane County prosecutors are eagerly awaiting a ruling that is expected to have statewide implications and may cause the retrial of at least two local murder cases.

The Washington Supreme Court is expected to rule in early May on several appeals that stem from a now-defunct practice of judges privately questioning jurors about sensitive topics, such as whether they had been victims of domestic violence or sexual assault.

“For the longest time everybody did it because the thinking was that people would be more open and honest if they weren’t questioned in a public courtroom,” said Jack Driscoll, Spokane County’s chief criminal deputy prosecutor.

Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys, said the private questioning began after a commission studied how to get more people interested in serving as jurors.

“One of the suggestions was questioning jurors in private on sensitive issues,” she said. “The pamphlet given to jurors told them they could request private questioning. So, the … practice was pretty much done in all counties.”

Then appellate judges earlier this decade began overturning cases because they deemed private questioning violated offenders’ rights for a public trial.

In 2007, appellate judges overturned two major cases in Spokane County because of the closed-door questioning.

In one of those cases, Brian W. Frawley was convicted of the January 2004 slaying of 20-year-old Margaret Cordova. In the other appellate judges reversed the second-degree rape conviction of Nicholas G. Duckett, which is one of the cases before the state Supreme Court, Loginsky said.

“One of the frustrating things about Mr. Duckett’s case was that Mr. Duckett … waived his right to be present. And yet on appeal, the court said that he had a right to assert that it violated his right to a public trial.”

One major legal question that the state’s high court must also decide is the issue of collateral appeals, Loginsky said. If granted, defendants who had already exhausted all available appeals might be able to re-open their cases on juror-questioning grounds.

“That could open a big door,” Driscoll said. “I think a lot of people used this practice for a long time.”

Driscoll said another case that could be affected by the court’s decision is that of 26-year-old John E. Lipinski, of Cheney, who was convicted in March 2006 of two counts of second-degree murder and sentenced to 30 years in prison. A jury convicted Lipinski of throwing his girlfriend, Melissa Saldivar, 19, out of a moving car.

She was pregnant with their daughter when Saldivar suffered the fractured skull from which she died on Aug. 11, 2004. Doctors kept her alive long enough to deliver their baby, Mataya, but the little girl was determined to be brain dead and was taken off life support on Oct. 1, 2004.

“Part of the difficulty is deciding which cases will be involved,” Driscoll said. “And we’ve had different opinions” from all three divisions of the state appellate courts.

As it stands, four cases are expected to be argued before the state’s high court to finally settle the issue.

Loginsky said that once cases started being overturned on the juror-questioning issue, attorneys began filing appeals on other issues – such as attorneys having discussions with judges in private during so-called sidebar discussions – that have to do with a public trial.

“We are seeing challenges to anyone in the courtroom where the gallery can’t hear,” she said.

Driscoll said the practice of privately questioning jurors ended before a 2009 ruling by the Washington Supreme Court deeming the practice to be a closure of public trials.