Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile No.: (602) 734-3823 Telephone: (602) 262-5319 EMail: [email protected] James J. Belanger (011393) Billy R. Blackburn (237) BLACKBURN LAW OFFICE 1011 Lomas Boulevard NW Albuquerque, NM 87102 (505) 242-1600 Email: [email protected] Attorneys for Defendant Angel Rivera

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Luis Cisneros, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CR03-730-PHX-SRB DEFENDANTS' OBJECTION TO ORDER ENUMERATING THE COURT'S OBJECTIVE HARDSHIP CRITERIA (Hearing Requested)

Defendants object to the Court's Order, dated October 18, 2005 (the "Criteria Order"), which enumerates the Court's unilateral criteria for excusing jurors based on "objective hardship." The Court has previously indicated that, because of the logistics of having prospective jurors receive and fill out the several thousand or so initial questionnaires that would be needed to obtain a jury in this case, the initial questionnaires in this case would be circulated on or about October 13, 2005.1 Assuming the Court intends to adhere, at least roughly, to its timeline, its distribution of the questionnaire does not allow Defendants' counsel an opportunity to have any meaningful input on what objective criterion might be used. The foregoing notwithstanding, and without waiving other statutory and constitutional objections they may have, Defendants object as follows to the Criteria Order.

1

Obviously this date has passed and Defendants are not aware if the questionnaire has already been sent.
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1.

We cannot determine from the Criteria Order whether the criteria listed on

page 2 are permissive or mandatory, that is, whether they apply to persons who merely request to be excused based upon these criteria, rather than making the showing required under 28 U.S.C. § 1866(c), or whether the Clerk will go so far as to make a unilateral and necessarily subjective determination based up on the fact that these criteria are listed by the prospective juror in his or her juror questionnaire. For example, in the Criteria Order, the Court notes that "the District's Jury Selection Plan establishes three categories of `persons [who] shall, upon individual request, be excused from jury service. General Order 04-20, December 1, 2004, at 5.'" Criteria Order, at 1 (emphasis added). Persons subject to excusal upon request are persons over 70 years of age, persons who have served as a grand or trial juror within the last two years, and voluntary service personnel. No other showing is required. Assuming that the persons identified at page 2 of the Criteria Order are to be excused based merely upon request, the Criteria Order and the District's Jury Selection Plan appear to violate 28 U.S.C. § 1863(b)(5)(A), which provides that the members of certain groups of persons or occupational classes shall, "on individual request therefor, be excused from jury service . . . only if the district court finds, and the plan states, that jury service by such class or group would entail undue hardship or extreme inconvenience to the members thereof, and excuse of members thereof would not be inconsistent with sections 1861 and 1862 [of Title 28]." Id. (emphasis added). Other than persons over the age of 70, persons who have served as grand or trial jurors within the last two years, and volunteer safety personnel, the District's Jury Selection Plan does not enumerate any groups of persons or occupational classes pursuant to 28 U.S.C. § 1863(b)(5).2
2

To do so the District Court of Arizona must subject such modifications to the requirements of 28 U.S.C. § 1863(a). A jury selection plan "shall be placed into operation after approval by a reviewing panel consisting of the members of the judicial council and either the chief judge of the district whose plan is being reviewed or such other active district judge of that district as the chief judge of the district may designate . . . . The district court shall promptly notify the panel, the Administrative Office of the United States Courts, and the Attorney General of the United States, of the initial adoption and future modifications of the plan by filing copies therewith. Modifications of the plan made at the instances of the district court shall become effective after approval by the Panel." 28 U.S.C. §1863(b) (emphasis added).
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The persons expressly designated for excusal from jury duty upon request in the current District's Jury Selection Plan, moreover, are persons whose request for excuse is based upon a fact that is objective and readily verifiable ­ age, prior grand or jury trial service, and service as a volunteer safety personnel. That is not the case with the criterion listed by the Court on page 2 of the Criteria Order. 2. Several of the criteria listed by the Court on page 2 of the Criteria Order are

subjective. For example, the Court indicates that "[s]ole caretakers of preschool age children or of other individuals, including elderly persons, who require extensive supervision," may be excused for hardship. However, "extension supervision" is a subjective concept. What is extensive supervision? Who will make the determination regarding at what point supervision becomes extensive or is merely moderate? This is not an objective criterion. Likewise, criterion number 4 at page 2 of the Criteria Order indicates that "[i]ndividuals who suffer from documented medical difficulties and for whom jury service would impose an undue risk of physical or psychological harm" are subject to being excused. What is an undue risk? How is that objectively verifiable? The Court further notes that "[s]pecial education teachers, or other teachers for whom a comparable substitute is not reasonably available" are subject to being excused. Order at 2 (criteria 5). What is a comparable substitute? What does it mean for one to be reasonably available? These are not criteria that are objectively verifiable, nor are they criteria that have been adopted by the District Court in its Jury Selection Plan pursuant to 28 U.S.C. § 1863. 3. Contrary to 28 U.S.C. § 1866(c), several of the criteria listed by the Court

for excusal appear to require no showing, due diligence or inquiry. For example, the Court notes that "[f]ull time students" are subject to excusal. Is this upon request or unilateral determination by the administrator? What if a full time student wants to serve on the jury and does not request excusal? What is a full time student? Is the Jury Administrator merely going to accept that assertion without any kind of showing? Likewise, full time wage earners who will not be compensated by their employers and
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full time self-employed individuals whose regular work hours include the hours of 9:00 a.m. to 2:30 p.m., Tuesday through Friday, are subject to being excused. Again, is this upon request or unilateral determination of the jury administrator? Would there be no due diligence done to determine whether the assertion by these individuals regarding the foregoing is true, accurate, or subject to being modified upon further inquiry? All of the criterion set forth by the Court on page 2 of its Order suffer from an inherent inability to determine with diligence whether or not the proffered excuse is legitimate or whether it can be realistically or practically addressed to allow for jury service in this case. At a minimum, this apparently rote acceptance of excuses is inconsistent with the statutory language that authorizes the excusal of a person summoned for jury service "upon a showing of undue hardship or extreme inconvenience." 28 U.S.C. § 1866(c). 4. 28 U.S.C. § 1866(d) provides that whenever a person is excused from jury

service, the jury commissioner or clerk shall note the specific reason therefore in the appropriate space and on the appropriate form. Given the subjectivity of the Court's enumerated criteria, the need for specificity regarding why a person is excused is even more important. 5. Finally, it appears inevitable that imposition of the Court's objective

criteria will have a substantially disproportionate impact on the composition of the jury panel. That is, exclusions based on transportation, child and elder care, distance, and wage earner status will necessarily increase the likelihood of an older, white, male jury. For the reasons set forth above, and for the reasons set forth and contemplated in Defendants' Motion Regarding Procedures Related to Jury Selection, CR 03-730-PHXSRB, filed September 27, 2005, Defendants strenuously object to the Court's Criteria Order and request a hearing thereon as soon as possible.

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RESPECTFULLY SUBMITTED this 25th day of OCTOBER, 2005. Billy R. Blackburn BLACKBURN LAW OFFICE 1011 Lomas Boulevard NW Albuquerque, NM 87102 and

5 LEWIS AND ROCA LLP 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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By s/ James J. Belanger James J. Belanger Attorneys for Defendant Angel Rivera

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CERTIFICATE OF SERVICE I hereby certify that on October 25, 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: Michael B. Bernays [email protected], [email protected] Billy R. Blackburn [email protected], [email protected] Kari Converse Carmen Lynne Fischer [email protected]

[email protected], [email protected] [email protected]

Gregory James Fouratt

Larry A. Hammond [email protected], [email protected] Jerry Daniel Herrera [email protected], [email protected] Debra Ann Hill [email protected], [email protected], [email protected] Barbara Lynn Hull [email protected] Gregory John Kuykendall [email protected], [email protected] Daniel D. Maynard [email protected], [email protected] Glenn B. McCormick [email protected], [email protected], [email protected] James Sun Park [email protected], [email protected], [email protected] Joe Romero [email protected] Peter Schoenburg John M. Sears [email protected], [email protected] [email protected], [email protected] [email protected]

Joseph Peter St. Louis Michael Terribile

[email protected], [email protected] [email protected]

Steven C. Yarbrough

I hereby certify that on October 25, 2005, I served the attached document by First Class mail on the following, who are not registered participants of the CM/ECF System:

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Death Penalty Law Clerk U.S. District Court Clerk's Office Office of the Death Penalty Law Clerk 401 West Washington Street Suite 321, SPC 10 Phoenix, AZ 85003-2119 s/Sherry A. Samford

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