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Georgia Supreme Court Rules that Child with Disabilities May Attend Jury Trial

June 18, 2012

The Georgia Supreme Court on Monday [June 18, 2012] ruled a judge was wrong to exclude a girl from a trial out of concern her physical and mental disabilities could sway the jury.

The court reversed a decision that limited the presence of Kyla Kesterson, who has severe cerebral palsy, during a medical malpractice trial. The lawsuit was brought by Kyla's parents on her behalf.

After a five-week trial, a Clarke County jury found in favor of Dr. Walter Jarrett, Athens Obstetrics and Gynecology and St. Mary's Hospital. But because Kyla was excluded from most of the trial, the case must be tried again.

"This involved a troubling dehumanization of the courtroom," the Kestertons' lawyer, David Walbert, said. "I'm so, so happy this court ruled so resoundingly they way it did."

In its 6-1 decision, the court said the appeal raised what appeared to be an issue it hadn't taken up before. It noted that excluding a party from a trial for such a reason was "an exceptional event in this state." It is also an error to do so, the ruling said.

Kyla could not be "denied her right to be present in court based solely on the risk that her physical or mental condition may generate improper sympathy from the jury, even if her condition prevents her from actively participating or fully understanding the proceedings," Justice David Nahmias wrote for the majority. "... The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this nation and, if anything, even more embedded in the law of this state."

Kyla, now 13, [uses] a wheelchair, has a feeding tube inserted into her stomach, must have her airway suctioned several times a day, [has] frequent seizures, has limited cognitive function and cannot speak.

During the 2008 trial, Kyla was allowed in court when the jury panel arrived. In a pretrial ruling, the judge had said she could also be in court during testimony that was "essential and relevant" to her medical conditions that resulted from the alleged malpractice.

The judge granted one of three requests by Kyla's lawyers for her to be present. She was in court briefly during testimony of a medical expert called by the defense.

The judge was right to be concerned about jury sympathy, but there are ways to address such concerns other than excluding a party from court, Nahmias said. These include the instructions the judge gives the jury, moving the trial to another county and limiting what lawyers can say during opening statements and closing arguments.

News source: Atlanta Journal Constitution

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