Free Other Notice - District Court of Arizona - Arizona

Michael B. Bernays State Bar # 007057 111 West Monroe Suite 1650 Phoenix, Arizona 85003 (602) 254-5544 Attorneys for Defendant Eppinger

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. LUIS A. CISNEROS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. CR 03-0730-PHX-SRB DEFENDANTS' OBJECTIONS TO JUROR QUESTIONNAIRE

The Defendant, Paul Eppinger, through counsel, Michael B. Bernays, and on behalf of Defendants Luis Cisneros, Felipe Cisneros, Raymond Llamas, Angel Rivera, Lorena Cisneros, Ben Austin, Juan Reyes and Richard Trujillo, hereby submits the following Memorandum of Points and Authorities objecting to the current version of the questionnaire to be submitted to potential jurors in this case on the grounds that it fails to include sufficient questions on the issues of mitigation impairment, witness credibility assessment, and perception of the death penalty process as to allow counsel to fully exercise the peremptory challenges accorded them and to expose potential issues which may give rise to challenges for cause. Counsel also suggests certain modifications to the introduction of the questionnaire. Respectfully submitted this 16th day of November, 2005.

/s/ Michael B. Bernays Michael B. Bernays Attorney for Defendant

Case 2:03-cr-00730-SRB

Document 1366

Filed 11/16/2005

Page 1 of 7

MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction. Over the past several weeks, counsel for the government, representative counsel of both the death-eligible and the non-death eligible defendants, and the Court have met informally in an effort to reach agreement on a juror questionnaire to be used in the empaneling of a jury in the instant case. The Court has now circulated its proposed juror questionnaire to counsel for all parties. See Document 1358. The Court has invited counsel to file any objections, requested additions or requested changes to this questionnaire. The instant pleading addresses those matters on behalf of all the defendants. II. Changes to the introduction. There are several areas of concern in the introductory pages of the questionnaire. The first occurs at page four under the heading "Case Summary". In that summary, the questionnaire describes the allegations contained in the indictment. The third paragraph of the case summary section describes the allegations concerning homicides that are alleged against some of the defendants. The defendants had previously requested the Court to include a sentence as follows: "Some of the defendants are not charged with any violent crime." This statement is factually true, at least with regard to defendants Benjamin Austin and Lorena Cisneros. The Court has not included this requested modification in its current version of the questionnaire. Counsel for the defendants would ask the Court to include this language, as it is needed to balance out the third paragraph of the case summary to make it clear that not every defendant is charged with a homicide. A natural reading of the paragraph as it exists could lead a juror to believe that every defendant is charged with some sort of homicide, the only distinction being whether a particular defendant is charged with the New Mexico homicides versus being charged with Arizona homicides versus being charged with conspiracy to kill a police officer. Nothing in the paragraph explicitly notifies the jurors that there are some defendants who are not charged with any such

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behavior. Counsel would request the Court to include this language so that the jurors will have a fair assessment of the ambit of the indictment as to all defendants. The other point which counsel would suggest be modified is the first paragraph under "Preliminary Matters" at page five of the questionnaire. Counsel are concerned that, should this matter proceed to trial, the estimate of six months may be an underestimation of the length of trial. Counsel would not want the jury to feel as though they had been misled and to hold that against the parties, the Court, or the system in general should the case last longer than six months. Counsel would suggest that the first paragraph under "Preliminary Matters" be modified to read as follows: This trial is expected to last at least six months. Our best present estimate is that it should end around June, 2006. Please be aware that circumstances, either beyond our control or incapable of anticipation, may result in the trial lasting longer than our best present estimate. [The remainder of the paragraph would remain as is.] III. Additional substantive questions. On November 10, 2005, counsel for the defendants submitted to the Court an informal memo requesting the inclusion of several additional questions. Though the final questionnaire did cover a few of those items, the following requested questions were not included. Counsel would request the Court to reconsider and include the following questions: 1. If you are a member of this jury one of your jobs will be to judge the credibility or believability of the witnesses. Do you feel that you are a good or bad judge of a person's character/credibility?

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2.

Would you tend to give either more or less weight to the testimony of a law enforcement officer simply because of his or her status as a law enforcement officer? Yes [ ] No [ ]

If Yes, please explain: 3. In this case you will hear testimony from government witnesses who have entered into cooperation with the government. In exchange for the witnesses' guilty plea and cooperation and testimony in this criminal trial, the government may agree to seek a reduction in punishment for these witnesses' past criminal conduct. Do you think such a witness would be less than truthful about others to try to secure a better sentence for himself or herself? Yes [ ] 4. No [ ] Depends on the person [ ]

Would it trouble you if a person was found guilty and possibly faced the death penalty based on the testimony of a witness who, before he worked his deal with the government, was involved in the very acts and activities that led to the charges against the defendant(s)? Yes [ ] No [ ]

5.

If you found a defendant guilty of murder, would you be thinking that it's now up to him to give you good reasons why the death penalty shouldn't be imposed? In a decision to impose life or death, please rate on a scale of 1 to 5 how important is the person's ability to be rehabilitated? [ [ [ [ [ ] 1 -- Not important at all ] 2 -- Somewhat important ] 3 -- Important ] 4 -- Quite important ] 5 -- Very Important

6.

7.

What would be important to you in making the decision of whether a person should receive the punishment of life in prison without the possibility of parole or death? Please indicate the strength of your agreement or disagreement with the following statements by checking the appropriate box following each question. If you have any comments or explanations, please enter them in the space provided. "Some criminals have potential to be so

8.

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dangerous in the future that they should be executed rather than be kept in prison for the rest of their lives." [ [ [ [ Comments: 9. In considering the death penalty each of you acting as an individual judge will make a moral assessment in deciding to vote for life or death. How do you feel about being asked to make a personal decision about voting for a sentence of life in prison or a sentence of death? ] ] ] ] Strongly agree Agree Disagree Strongly disagree

These questions are designed to permit counsel not only to attempt to discover deeply seated and/or hidden biases, prejudices, or other defects in the venire which would give rise to a challenge for cause, but also to explore attitudes of the venire which may prove critical in reaching decisions on the use of those peremptory challenges accorded to the defendants in this final selection process. It would do well at this juncture to

remember the reasoning of the New Jersey Supreme Court in State v. Biegenwald, 126 NJ 1, 594 A.2d 172 (1991): The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror's views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venire person's demeanor. We reiterate that voir dire should proceed with the conscious object of providing court and counsel alike with sufficient information with which to challenge potential jurors intelligently ­ whether for cause or peremptorily. 126 NJ at 39, 594 A.2d at 192. It is only through such searching and thorough voir dire as has been requested by the defendants that the defendants' rights under the Fifth, Sixth and Eighth Amendments to due process, effective assistance of counsel, and a fair sentencing procedure can be protected. Counsel would urge the Court to find that the requested questions, upon reflection, add greatly to the store of information which will be available to all of the

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parties in making the jury empanelment decisions which will need to be made, not burdening the prospective jurors to any significantly greater extent than the questionnaire as proposed. On balance, the increase in information outweighs the minimal intrusion on the jurors' time and privacy and should weigh in favor of inclusion of these questions in the questionnaire. IV. Conclusion. For all the foregoing reasons, and based upon the defendants' rights to due process, effective assistance of counsel, and a fair sentencing procedure under the Fifth, Sixth and Eighth Amendments to the United States Constitution, counsel would respectfully request the Court to include the questions and changes detailed herein. Respectfully submitted this 16th day of November, 2005.

/s/ Michael B. Bernays Michael B. Bernays Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on November 16, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Gregory Fouratt Steven Yarbrough Glenn McCormick James Belanger Billy Blackburn Kari Converse Carmen Fischer Jerry Herrera Barbara Hull Gregory Kuykendall Daniel Maynard James Sun Park Joe Romero Peter Schoenberg John Sears Joseph P. St. Louis Michael Terribile I also hereby certify that on November 16, 2005, I sent a copy of this document by hand-delivery to: Honorable Susan R. Bolton United States District Court 401 West Washington Street Phoenix, AZ 85003 Capital Case Staff Attorney 401 West Washington Street Phoenix, AZ 85003 /s/ C. Woodruff

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