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

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PAUL K. CHARLTON United States Attorney District of Arizona GREGORY J. FOURATT (NM #9209) Special Assistant U.S. Attorney 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-730-PHX-SRB Plaintiff, v. Luis Cisneros, et al., Defendants. UNITED STATES' MOTION TO INCLUDE CAPITAL QUESTIONS IN JUROR QUESTIONNAIRE AND DURING PRETRIAL VOIR DIRE

THE UNITED STATES OF AMERICA moves the Court to conduct pretrial questioning

12 of potential jurors regarding their views, basic beliefs, and core values regarding capital 13 punishment and their ability to serve impartially in this case. 14 15 16 A. PRELIMINARY DISCUSSION 1. Standard of Judicial Review A venire member may be properly challenged for cause and excluded from capital jury

17 service when the trial judge is left with a "definite impression" that the juror would not be able 18 to faithfully and impartially follow the law applicable to capital trials . Wainwright v. Witt, 469 19 U.S. 412, 425-26 (1985). The trial court's determination that a potential juror would be 20 unqualified to serve in a fair and impartial manner on a capital jury based on juror bias is a 21 finding of fact entitled to great deference or a presumption of correctness, Witt, 469 U.S. at 22 428-29, and juror bias need not be proved with "unmistakable clarity," Witt, 469 U.S. at 424. 23 Trial judges' decisions to excuse jurors on this basis generally are given considerable 24 deference on appeal because such decisions are based in large part on face-to-face credibility 25 assessments of the prospective jurors. United States v. Flores, 63 F.3d 1342, 1355 (5th Cir. 26 1995) (citing and quoting Witt, 469 U.S. at 426-29). But see United States v. Chanthadara, 230 27 28

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1 F.3d 1237 (10th Cir. 2002) (discussed infra, for the correct standard of review when the juror 2 is excused prior to voir dire based upon her answers written in a juror questionnaire). 3 Although trial judges' decisions to excuse jurors for cause based on juror bias are given

4 considerable deference on appeal, it is reversible error to improperly exclude a "death5 qualified" juror for purported inability to follow the law applicable to capital proceedings. 6 Gray v. Mississippi, 481 U.S. 648, 665-66 (1987). 1/ Under Witherspoon and Witt, general 7 reservations regarding the death penalty or expressed conscientious or religious scruples 8 against its infliction, are not sufficient to exclude jurors if the reservations or scruples would 9 not prevent or substantially impair their performance as jurors. Witherspoon v. Illinois, 391 10 U.S. 510, 520-22 (1968) and Witt, 469 U.S. at 423. Therefore, a juror who has general 11 reservations about, or conscientious scruples against, the death penalty, but who nevertheless 12 under Witherspoon is eligible to serve cannot be excluded for cause without committing 13 reversible error. Gray, 481 U.S. at 659. See also Adams v. Texas, 448 U.S. 38, 49-50 (1980) 14 (exclusion impermissible if the jurors' reservations about the death penalty only mean that they 15 would deliberate with greater seriousness and gravity, or their deliberations would involve 16 them emotionally). 17 18 2. Standard for Juror Qualification The legal standard for determining when a prospective juror may be excluded for cause

19 because of his or her views on capital punishment is "whether the juror's views would `prevent 20 or substantially impair the performance of his [or her] duties as a juror in accordance with his 21 instructions and his oath.'" Morgan v. Illinois, 504 U.S. 719, 728 (1992) (citing and quoting 22 Witt, 469 U.S. at 424 and Adams, 448 U.S. at 45). This standard is based on the defendant's 23 24 It should be noted that Witt and Witherspoon mark the limits on the government's 25 power to exclude jurors based on bias against the death penalty and do not establish an affirmative right to death-qualified jurors. Accordingly, it is not per se reversible constitutional 26 error to improperly exclude for cause a death-qualified juror on grounds unrelated to the death penalty. Rather, exclusions on other grounds are reviewed under the same standard applicable 27 in a non-capital context. 28
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1 right to a fair and impartial jury, Witt, 469 U.S. at 418, and the legitimate state interest in 2 administering constitutional capital sentencing schemes, Witt, 469 U.S. at 423. 3 As set forth in Morgan, the legal standard for determining when a prospective juror may

4 be excluded for cause applies equally to both proponents and opponents of capital punishment. 5 Morgan, 504 U.S. at 734 n.7. This legal standard also applies to impartial decision-making 6 during the guilt phase deliberations, as well as the penalty phase deliberations. Witherspoon, 7 391 U.S. at 522-23 n.21. 8 "Prevent" in this context means "automatically" or "always" voting against the death

9 penalty [or for it] regardless of the facts. Witherspoon, 391 U.S. at 520-22; Witt, 469 U.S. at 10 422; Morgan, 504 U.S. at 733. 11 "Substantially impair" in this context means a juror "might" vote for the death penalty [or

12 against it] under certain personal standards rather than following the law. Witt, 469 U.S. at 13 422; Morgan, 504 U.S. at 734. 14 15 3. Responses From Jurors Justifying Exclusion

Trial courts' exclusion of jurors for substantial impairment of their ability to fairly and

16 impartially apply the law applicable to capital proceedings have been sustained on appeal 17 despite the fact that jurors' answers have been: equivocal; 2/ ambiguous; 3/ contradictory; 4/ 18 conflicting; 5/ or when their beliefs would "interfere" with their decision. 6/ 19 Jurors have also been properly excused when they deem the death penalty appropriate or

20 inappropriate only for specific categories of murder or murderers such as: 1) multiple murders 21 or serial murderers, Fuller v. Johnson, 114 F.3d 491, 500 (5th Cir. 1997) (juror properly 22 United States v. Webster, 162 F.3d 308, 340-41 (5th Cir. 1998), cert. denied, 528 U.S. 23 829 (1999).
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United States v. Tipton, 90 F.3d 861, 879-81 (4th Cir. 1996). Id. Id. Witt, 469 U.S. at 415-16 and Tipton, 90 F.3d at 881.
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1 excluded based on her opinion that only multiple murders merited capital punishment) and 2 United States v. Moore, 149 F.3d 773, 780 (8th Cir. 1998) (juror properly excluded based on 3 his response that he would consider the death penalty if the person murdered more than 100 4 people, not merely one or two); 2) benchmark personalities, Stewart v. Dugger, 877 F.2d 851, 5 855-57 (11th Cir. 1989) (juror properly excused when he responded that he would have to think 6 hard about imposing it for a person such as Charles Manson) and Antwine v. Delo, 54 F.3d 7 1357, 1369 (8th Cir. 1995) (juror properly excused when he responded that he could consider 8 the death penalty for someone like Adolf Hitler after he had expressed unequivocal opposition 9 to the death penalty); 3) alcohol-related murders, Davis v. Executive Dir. of Dept. of 10 Corrections, 100 F. 3d 750, 778 (10th Cir. 1996) (juror properly excused because he stated that 11 his experience with and views about alcohol would prevent him from imposing the death 12 penalty in an alcohol-related crime); 4) victim involved with drugs, United States v. Flores, 63 13 F.3d 1342, 1356 (5th Cir. 1995) (court did not abuse its discretion when it excused a venire 14 member who stated that he could never vote for the death penalty in a case in which the victim 15 was involved in drugs); 5) murder of a family member, Bell v. Lynaugh, 828 F.2d 1085, 1092 16 (5th Cir.1985) (juror properly excused when, after unambiguously stating that she could never 17 impose the death penalty, she qualified her answer by stating that she could impose the death 18 penalty on the killer of a family member); or 6) murder of a special victim, Flores, 63 F.3d at 19 1355 (juror could impose the death penalty only if the defendant had abused and murdered a 20 small child); LaRette v. Delo, 44 F.3d 681 (8th Cir. 1995) (juror would vote against the death 21 penalty unless the victim was "extremely close to her"). 22 Also, jurors have been properly excluded when they informed the court they would

23 consider the death penalty only in extreme hypothetical situations. Antwine, 54 F.3d at 1369 24 (Adolf Hitler) (small child brutally murdered); Webster, 162 F.3d at 340 (juror believed that 25 "the possibility is there" that situations existed in which juror could impose a death sentence). 26 27 28
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Finally, jurors have also been properly excluded when they expressed their intent to hold

2 the government to an arbitrary, improper, or impossible evidentiary standard. Flores, 63 F.3d 3 at 1355-56 (proper to excuse juror who would impose the death penalty only if the defendant 4 confessed or juror witnessed murder); Drew v. Collins, 964 F.2d 411, 416-17 (5th Cir. 1992) 5 (proper to excuse juror who would hold government to higher standard than reasonable doubt). 6 7 4. Procedures for Questioning Prospective Capital Jurors Individual and sequestered voir dire is not required in a capital murder case. Wingo v.

8 Blackburn, 783 F.2d 1046, 1051-52 (5th Cir. 1986) (jurors brought into the courtroom twelve 9 at a time and questioned). Examining jurors in panels of five in a capital case has been held 10 to meet the requirements of constitutional due process. Trujillo v. Sullivan, 815 F.2d 597, 607 11 (10th Cir. 1987). The "preferred approach" in capital cases, however, is to conduct individual 12 examination of the jurors. Cummings v. Dugger, 862 F.2d 1504, 1508 (11th Cir. 1989). 13 Attorney participation in questioning prospective jurors is not required. Trujillo v. Sullivan, 14 815 F.2d at 607 (exclusively court-conducted, death-qualifying voir dire without giving 15 counsel right to "rehabilitate" does not violate due process). 16 Whether the court conducts individual or small group capital voir dire, the means

17 employed by the trial court to test the impartiality of the jurors must create a reasonable 18 assurance that prejudice would have been discovered if present. United States v. Sarmiento19 Rozo, 676 F.2d 146, 148 (5th Cir. 1982). 20 21 5. Scope of Questioning The exact nature and scope of the voir dire questions are committed to the broad discretion

22 of the district court and are subject to review only for abuse of that discretion. United States 23 v. Tipton, 90 F.3d at 877 (citing Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) and 24 Ham v. South Carolina, 409 U.S. 524, 527 (1973)); accord Fed. R. Crim. P., Rule 24(a). 25 26 a. General Morgan Questions The Constitution requires that the court in conducting death-qualification voir dire do more

27 than pose general fairness and "follow the law" questions in detecting jurors who cannot 28
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1 perform their duties in accordance with the law. Morgan, 504 U.S. at 734-35. As pointed out 2 by the Supreme Court, "[a]s to general questions of fairness and impartiality, such jurors could 3 in all truth and candor respond affirmatively, personally confident that such dogmatic views 4 are fair and impartial, while leaving the specific concern unprobed." Morgan, 504 U.S. at 735. 5 "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to 6 identify unqualified jurors." Morgan, 504 U.S. at 729. 7 In Morgan, the Supreme Court was presented with the question of whether, during jury

8 selection for a capital defendant, a trial court may, consistent with the defendant's right to due 9 process, refuse to inquire into whether a potential juror would automatically impose the death 10 penalty upon the defendant after conviction for a capital offense. Morgan, 504 U.S. at 721. 11 Morgan's defense attorney asked the trial judge to ask all prospective jurors whether upon 12 conviction they would, "automatically vote to impose the death penalty no matter what the 13 facts are?" Morgan, 504 U.S. at 723 (emphasis added). The trial court refused defense 14 counsel's request. Morgan, 504 U.S at 723. 15 The Supreme Court held that the trial judge's refusal to inquire into the prospective juror's

16 views, as requested by defense counsel, was constitutionally insufficient and that a capital 17 defendant is entitled to challenge for cause and have removed on the ground of bias a 18 prospective juror who will automatically vote for the death penalty irrespective of the facts or 19 the trial court's instructions on the law. Morgan, 504 U.S. at 726-27. As stated by the 20 Supreme Court, it is clear that such a juror is not an impartial juror and must be removed for 21 cause. 22 23 24 25 26 Morgan, 504 U.S. at 729. 27 28
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A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, ... a capital defendant may challenge for cause any prospective juror who maintains such views.

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Consequently, upon request of the defendant, the trial court must inquire whether potential

2 jurors would automatically impose the death penalty upon convicting the defendant, because 3 a juror who would automatically vote for death is not following the law, or considering the 4 facts or mitigating evidence, and therefore, is not a fair and impartial juror, Morgan, 504 U.S. 5 at 723. 6 If such a request is made by defense counsel, the United States submits that the appropriate

7 and complete inquiry, consistent with the Court's analysis and holding in Morgan is, "If you 8 found the defendant guilty of [the capital offense] would you automatically vote to impose the 9 death penalty regardless of the facts, the mitigating evidence, or the law?" Morgan, 504 U.S. 10 at 723, 733-34, 738. 11 In addition to the specific inquiry required under Morgan, basic beliefs and core values are

12 appropriate areas of inquiry. United States v. McVeigh, 153 F.3d 1166, 1208 (10th Cir. 1998), 13 and open-ended questions regarding the jurors' views, beliefs, and core values are preferred. 14 See State v. Williams, 550 A.2d 1172, 1182 (N.J. 1988). 15 16 b. Specific Morgan Questions Frequently, counsel for capital defendants have sought to expand the scope of capital

17 questioning required by the Supreme Court in Morgan and cite its holding as authority in 18 support of their proposed inquiry into how a prospective juror would vote in advance of trial 19 when faced with specific facts or specific aggravating and mitigating factors. Such an 20 expansive interpretation of Morgan was rejected by the court in McVeigh, 153 F.3d at 120621 08. 22 The trial judge in McVeigh ruled that questions seeking to determine what prospective

23 jurors think about imposing the death penalty in a particular case, or upon consideration of 24 potential evidence, are broader than the scope of questioning required under Morgan, which 25 only requires ascertaining the jurors' basic beliefs and core values about the death penalty, 26 "regardless of the facts and circumstances," and which does not require allowing defendants 27 28
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1 to predetermine jurors' views about punishment for the particular crime charged. McVeigh, 2 153 F.3d at 1207-08. 3 Thus, case-specific factual questions about the evidence to be presented in the guilt phase,

4 or how a juror would vote if presented with specific aggravating or mitigating factors in the 5 penalty phase, are broader than the scope of questioning required under Morgan. McVeigh, 6 153 F.3d at 1207-09. See also Tipton, 90 F.3d at 878. 7 Additionally, case-specific predisposition questions, pre-commitment questions, and

8 questions calling for speculation on the part of the juror are prohibited since Morgan does not 9 allow defendants to pre-determine jurors' views of the appropriate punishment for the 10 particular crime charged and does not require that the questions at issue be asked. McVeigh, 11 153 F.3d at 1208. Questions are objectionable when they are predicated on facts specific to 12 the case at issue or upon speculation as to what facts may or may not be proven at trial. 13 McVeigh, 153 F.3d at 1207. As the Tenth Circuit correctly stated in McVeigh, 14 15 16 17 "Morgan was written as a reciprocal case to Witherspoon, and is designed to identify potential jurors who would automatically impose the death penalty for conviction of a capital offense. When a defendant asks a juror to speculate or pre-commit on how that juror might vote based on any particular facts, the question strays beyond the purpose and protection of Morgan." McVeigh, 153 F.3d at 1207 (emphasis added).

18 See also Witherspoon, wherein the court noted, 19 20 21 22 23 391 U.S. at 522 n.21 (emphasis in original). 24 Finally, improperly phrased questions - such as those which misstate the law or confuse 25 the issues - are not permitted under Morgan. McVeigh, 153 F.3d at 1207. 26 27 28
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"[A] prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by ... law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings."

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6. Rehabilitation of Predisposed Jurors As indicated earlier on page 2, supra, general reservations regarding the death penalty or

3 general support for the death penalty are not sufficient grounds for excluding a juror. 4 Witherspoon 391 U.S. at 520-22. The test is whether the juror's general reservations or 5 general support regarding the death penalty "prevent or substantially impair" the juror's 6 performance of his duties as a juror in accordance with his instructions and his oath. Morgan, 7 504 U.S. at 728. Thus, jurors who express initial support either for or against the death penalty 8 need not be automatically disqualified from capital jury service where the record as a whole 9 reflects that the juror is able to set aside that predisposition and apply the proper standards for 10 a decision to the facts of the case. Although not required, see Trujillo v. Sullivan, supra, the 11 court or counsel can engage the juror in a discussion designed to determine whether or not the 12 juror can be "rehabilitated," and thus, shown to be impartial, despite his initial answers -13 particularly where the juror has not been instructed on the correct application of the law 14 regarding capital sentencing hearings. 15 The test for seating a juror with a predisposition regarding the appropriate punishment is

16 whether the juror can lay aside his or her impression or opinion and render a verdict based 17 upon the evidence. Witt, 469 U.S. at 423-24. Jurors who are supporters of the death penalty 18 are acceptable for capital service if the court believes they have changed their position and set 19 aside their views when questioned further or supplied with the correct and applicable law. See 20 Bunch v, Thompson, 949 F.2d 1354, 1367 (4th Cir. 1991) (two jurors agreed that the death 21 penalty should be applied in every murder, but both changed their positions upon immediate 22 re-questioning); Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995) (jurors, despite initial 23 comments indicating they would automatically apply the death penalty, after further 24 questioning, indicated they could consider imposing a life sentence without parole). 25 Ultimately - whatever their beliefs, views, or opinions regarding capital punishment -

26 jurors must be able to follow the court's instructions and weigh the aggravating and mitigating 27 factors to determine the appropriate punishment. See United States v. Hall, 152 F.3d 381, 41228
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1 13 (5th Cir. 1998) (juror who asserted a pro-death bias for all kidnaping cases resulting in 2 death, asserted he could follow instructions and weigh the aggravating factors against the 3 mitigating factors); Webster, 162 F.3d at 343 (statements in ignorance of the law the court 4 would instruct the juror to apply to the defendant's hypothetical questions, combined with 5 affirmation that the juror would be able to follow the instructions and procedures, allowed the 6 court to find the juror competent to serve). Whatever punishment is appropriate under the 7 facts and the law - whether it is a sentence of life or a sentence of death - the juror must be 8 able impose it, regardless of his or her own personal beliefs regarding the death penalty. Gray 9 v. Mississippi, 481 U.S. 648, 653 (1987). 10 11 B. UNITED STATES' PROPOSED JURY SELECTION PROCEDURES The United States proposes that the Court include several limited, general questions in its

12 questionnaire regarding capital punishment, and later, during individual or small group voir 13 dire, provide for discussion of the jurors' views, basic beliefs, and core values regarding capital 14 punishment in greater detail. This motion and its appendices set forth specific

15 recommendations regarding each stage of the selection process. 16 17 1. The Questionnaire in This Case

Although the United States' proposed capital jury questions for inclusion in the Court's

18 questionnaire contain inquiries regarding each juror's views on capital punishment, as well as 19 a brief description of a capital trial, the questions are designed to preliminarily assess the 20 jurors' opinions and are not designed to determine, in the case of every juror, whether those 21 opinions can be set aside at either the guilt phase or the sentencing hearing in order that the 22 case may be decided upon the evidence and the Court's instructions on the law. The United 23 States' proposed preliminary capital jury instructions for inclusion in the Court's questionnaire 24 are attached in Appendix A. The United States' proposed capital jury questions for inclusion 25 in the Court's questionnaire are attached in Appendixes B and C. Appendix B includes a 26 single general question asking for jurors' opinions on the death penalty as well as a series of 27 28
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1 questions asking the juror where he or she falls along the spectrum of opinions regarding 2 capital punishment. Appendix C includes questions required under Witherspoon and Morgan. 3 The United States proposes that the issue of whether jurors can "set aside their opinions"

4 be postponed until such time as they are questioned by the Court either individually or in small 5 groups. Immediately prior to this face-to-face questioning, the United States proposes that all 6 potential jurors be given additional detailed instructions on the bifurcated nature of a capital 7 trial, 7/ and then, if appropriate, be questioned during face-to-face jury selection whether they 8 can "set aside their opinions" and follow the law as they have been instructed. Asking 9 potential jurors whether they can "set aside their opinions" and follow the law without having 10 been thoroughly instructed regarding such law renders the questioning meaningless because 11 the jurors have no basis for knowing what the appropriate law is, whether it will conflict with 12 their opinions, and ultimately, whether it will prevent them from being impartial jurors. The 13 United States' proposed capital jury instruction for this face-to-face stage of the jury selection 14 process is attached in Appendix D. 15 The United States proposes that the next phase of jury selection consist of individual or

16 small group questioning of the jurors by the Court on the issue of capital punishment, as well 17 as any additional areas requiring similar treatment such as pretrial publicity and hardship. 8/ 18 The United States' proposal is informed by a fairly recent decision from the United States

19 Court of Appeals for the Tenth Circuit. In Chanthadara, the defendant's death sentence was 20 vacated after he was convicted in the District of Kansas for his role in a robbery of a restaurant 21 22 These abbreviated capital jury instructions can be given to an entire panel at the beginning of a daily session, or at the beginning of the morning or afternoon session depending 23 upon which format the court elects to employ. The capital jury instructions can also be read to each individual juror immediately prior to the juror's individual interview. 24 8/ Once they have completed the questionnaire, jurors can be brought to the 25 courthouse in small groups on a daily basis. For example, a group of 12-15 can be brought to the courthouse in the morning for preliminary capital jury instructions followed by individual 26 interviews. A second group of 12-15 can be brought to the courthouse for afternoon interviews. Depending on the speed with which jurors are interviewed, the Court can modify the number of 27 jurors brought to the courthouse on any given day. 28
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1 and the brutal murder of one of its owners. As one of its grounds for vacating the sentence and 2 remanding the case to the district court for re-sentencing, the court cited the erroneous 3 exclusion of a juror for cause based solely upon her responses to a questionnaire. Chanthadara, 4 230 F.3d at 1247-48. 5 Although the court declined to decide whether a trial court has the obligation to go beyond

6 the written responses of a prospective juror and engage in face-to-face voir dire, it noted that, 7 "the Supreme Court has expressly warned against oversimplifying the inquiry as to whether 8 jurors can perform their duty despite their views on the death penalty..." and "because the 9 jurors are vested with greater discretion in capital cases, the examination of prospective jurors 10 must be more careful than in non-capital cases." Chanthadara, 230 F.3d at 1269 (citing Witt 11 and Turner v. Murray, 476 U.S. 28 (1986). 12 The court did, however, address the question of what standard of review to apply to a

13 decision to exclude prospective capital jurors solely on the basis of responses to a 14 questionnaire and decided that de novo review was required. "[D]iscretion generally accorded 15 the district court is based on its ability to assess the credibility of prospective jurors upon 16 observing their demeanor in responding to questions. Accordingly, because the trial court here 17 was not in a position to observe Mrs. Phillip's demeanor, it was in no better position than an 18 appellate court to assess her answers pursuant to the law governing the removal of prospective 19 jurors based on their death penalty views. Thus, the court's decision to remove the juror for 20 cause based on her death penalty views is entitled to no particular deference." Chanthadara, 21 230 F.3d at1270. 22 The appellate court's inability to rely upon the responses of prospective juror Phillips was

23 due, in part, to a question she was never asked. "[S]he was never asked, or required to answer, 24 whether, if the facts of the case and the evidence presented warranted imposition of the death 25 penalty under the law, she would at least consider imposing a death sentence in light of her 26 personal conviction......Nothing in Mrs. Phillip's responses on the record indicate an intention 27 28
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1 to disregard or circumvent the law or the court's instructions." Chanthadara, 230 F.3d at 1271-72. 2 Although a more precisely drafted questionnaire which included a description of the

3 capital sentencing process as set forth in 18 U.S.C. § 3592 et seq. and a follow-up question 4 articulating the proper legal standard used to exclude jurors for cause would pass constitutional 5 muster, the United States believes the more prudent course is one which allows the Court to 6 base exclusion of jurors on a face-to-face credibility assessment. Unless a juror clearly and 7 unequivocally states in response to the questionnaire that her views on the death penalty would 8 prevent her from following the Court's instructions in either the guilt phase or the sentencing 9 hearing (should such a question be included), individual or small group voir dire should be 10 conducted. 11 The parties should be given sufficient time to review the answers in the questionnaire and

12 then confer as to whether the parties can stipulate to the exclusion for cause of any of the 13 jurors. The parties then can file a notice with the Court identifying the juror number(s) of 14 those jurors the parties have agreed should be excluded for cause. The remainder will be 15 summoned to appear on a date, or dates, to be determined by the Court and its jury 16 administrators. 17 18 2. Individual or Small Group Voir Dire The United States has attached, in Appendix E, a compendium of questions which could

19 be used by the Court to probe further into a juror's views on capital punishment and to make 20 the ultimate determination on exclusions for cause depending on whether that juror is a 21 proponent or opponent of capital punishment, or whether that juror has no opinion one way or 22 the other. As previously mentioned, Appendix D is a proposed preliminary instruction on the 23 bifurcated capital trial and the obligations of the jury. 24 25 3. Proposed Questions During Individual or Small Group Voir Dire The United States believes that individual or small group interviews on capital punishment

26 should include - at a minimum - the following questions: 27 28
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a. All Jurors: (1) Would you please explain any personal, moral, religious, or other views or opinions

3 you have regarding the death penalty? 4 (2) If you knew that the defendants could possibly be sentenced to death if you as a

5 member of the jury found him guilty of the capital offense, would your views or opinions 6 regarding the death penalty prevent you from reaching a verdict of guilty, or not guilty, based 7 upon the evidence and the Court's instructions on the law during the first part of the trial? 8 (2)(a) If your views or opinions would not prevent you from reaching a verdict, would

9 your views or opinions influence you or affect you during deliberations during the first part of 10 the trial? Please explain how and why. Witherspoon v. Illinois, 391 U.S. 510, 522-23, n.21 11 (1968). 12 13 b. Opponents of Capital Punishment (3) Would your views or opinions regarding the death penalty prevent you from imposing

14 the death penalty as an appropriate punishment if the defendants in this case are convicted of 15 a capital offense - regardless of the facts or aggravating factors? See Morgan v. Illinois, 504 16 U.S. 719, 733-34 (1992). 17 (4) Would your views or opinions regarding the death penalty make it difficult for you

18 to impose the death penalty as an appropriate punishment if the defendants in this case are 19 convicted of a capital offense - regardless of the facts or aggravating factors? Id. 20 (5) If the jury found the defendants guilty of a capital offense, would you automatically

21 vote to impose a sentence of life imprisonment - regardless of the facts or aggravating factors? 22 Id. 23 24 c. Proponents of Capital Punishment: (6) Would your views or opinions regarding the death penalty prevent you from imposing

25 a sentence of life imprisonment as an appropriate punishment if the defendants in this case are 26 convicted of a capital offense - regardless of the facts or mitigating factors? Id. 27 28
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(7) Would your views or opinions regarding the death penalty make it difficult for you

2 to impose a sentence of life imprisonment as an appropriate punishment if the defendants in 3 this case are convicted of a capital offense - regardless of the facts or mitigating factors? Id. 4 (8) If the jury found the defendants guilty of a capital offense, would you automatically

5 vote to impose a sentence of death - regardless of the facts or mitigating factors? Id. 6 7 8 d. All Jurors: (The following questions require an instruction on the law applied to capital trials to be meaningful.) (9) Would you be able to temporarily set aside or suspend your own personal views or

9 opinions on the death penalty - whatever they may be - and determine whether the defendants 10 are guilty or not guilty of a capital offense based upon the evidence presented and the Court's 11 instructions on the law? See U.S. v. Flores, 63 F.3d 1342, 1353 (5th Cir. 1995) (citing Witt, 12 469 U.S. at 426-29. 13 (10) Would you be able to temporarily set aside or suspend your own personal views or

14 opinions on the death penalty - whatever they may be - and determine the appropriate 15 punishment under the law based upon the evidence presented and the Court's instructions on 16 the law? Id. 17 (11) If a sentence of death is appropriate under the facts and law, would you be able to

18 temporarily set aside or suspend your personal views or opinions regarding the death penalty 19 and life imprisonment and impose a sentence of death? Gray v. Mississippi, 481 U.S. 648, 653 20 (1987). 21 (12) If a sentence of life imprisonment without the possibility of release is appropriate

22 under the facts and law, would you be able to temporarily set aside or suspend your personal 23 views or opinions regarding the death penalty and life imprisonment and impose a sentence of 24 life? Id. 25 26 e. Additional Voir Dire and Challenges Additional individual or small group voir dire could be conducted by the Court, in its

27 discretion, after hearing specific requests from the parties. 28
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CONCLUSION For the above reasons, potential capital jurors in this case should be instructed on the law

3 applicable to capital trials and then be examined before trial - either individually or in small 4 groups - on their views, basic beliefs, and core values regarding capital punishment and 5 whether they are able to serve impartially in this case. 6 7 8 9 10 S/ Gregory J. Fouratt 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREGORY J. FOURATT Special Assistant United States Attorney PAUL K. CHARLTON United States Attorney District of Arizona Excludable delay pursuant to 18 U.S.C. § 3161(h)(8) may occur as a result of this motion. Respectfully submitted this 18th day of October, 2005.

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1

CERTIFICATE OF SERVICE

2 I hereby certify that, on October 18, 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 3 Electronic Filing to the following CM/ECF registrants: 4 John Sears, Esq. 107 N. Cortez St. 5 Prescott, AZ 86301 6 Peter Schoenburg, Esq. 7
500 4th St., NW, Ste. 400 Albuquerque, NM 87102 1101 Lomas, N.W. Albuquerque, NM 87102-1952 2929 N. Central, Ste. 2100 Phoenix, AZ 85012 45 W. Jefferson, Ste. 403 Phoenix, AZ 85003 Michael Bernays, Esq. James Park, Esq.

111 W. Monroe, Ste. 1500
Phoenix, AZ 85003 James Belanger, Esq. 40 N. Central Ave., Ste. 1900 Phoenix, AZ 85004 Greg Kuykendall, Esq. 145 S. 6th Ave. Tucson, AZ 85701 Kari Converse, Esq. 122 Tulane, SE Albuquerque, NM 87106 Dan Maynard, Esq. 1800 Great American Tower 3200 N. Central Ave. Phoenix, AZ 85012 Michael Terribile, Esq. 111 W. Monroe, Suite 1650 Phoenix, AZ 85003

8 Billy Blackburn, Esq. 9

10 Larry Hammond and Debra Hill, Esqs. 11

12 Carmen Fischer, Esq. 13 14 15 111 W. Monroe St., Suite 1650
Phoenix, AZ 85003

16
Barbara Hull, Esq.

17 86 W. University Dr., Ste. 101A
Mesa, AZ 85201-6666

18 Joe Romero, Jr., Esq. 19 1905 Lomas, NW Albuquerque, NM 87104-1207 20 Joseph St. Louis, Esq. 21 216 N. Main Ave. Tucson, AZ 85701-7202 22 23 24 25 26 27 28

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APPENDIX A PRELIMINARY INSTRUCTIONS FOR QUESTIONNAIRE The Court is asking these questions regarding your feelings about the death penalty

4 because the death penalty is one of the possible sentences for a person convicted of certain of the 5 charges contained in the indictment. The other possible punishment is life in prison without the 6 possibility of release. Therefore, the Court must know whether you will be fair to both the United 7 States and to the defendants on the issue of punishment, if you reach that issue. The Court will 8 now explain to you a little more about this case and the procedures that will be used. 9 10
This case may proceed in two stages. During the first stage of the trial, the jury will determine whether the defendants are

11 guilty or not guilty of one or more of the offenses charged in the indictment, including the capital 12 counts. 13
If the defendants are found guilty of an offense for which the death penalty may be

14 imposed, the Court will conduct a separate sentencing hearing to determine the punishment to be 15 imposed. 16
At the separate sentencing hearing, the jury will be instructed to consider certain

17 aggravating factors offered by the United States. At the separate sentencing hearing, the jury will 18 also be instructed to consider mitigating factors offered by the defendants. 19
The word "aggravate" means to "make worse" or to "intensify." An aggravating factor,

20 then, is a fact or circumstance which would tend to support imposition of the death penalty. 21
The word "mitigate" means to "make less severe" or to "moderate." A mitigating factor,

22 then, is: any aspect of the defendant's background, character, or record; any circumstance of the 23 offense(s); or any other relevant fact or circumstance which would tend to support imposition of a 24 sentence of life imprisonment without the possibility of release. 25
After considering and weighing the aggravating and mitigating factors at the sentencing

26 hearing, the jury will be asked to make a decision whether the defendants should be sentenced to 27 death or to life imprisonment without possibility of release. The jury's decision will be made on 28 the basis of the evidence presented and the Court's instructions on the law applicable to this case.

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The Court will sentence the defendant according to the decision of the jury. In any case in which the charge carries a possible penalty of death, the law requires that

3 jurors answer questions regarding their views, beliefs, and opinions about the possible penalties. 4 This is true even though the defendants might be found not guilty of the charges in the indictment, 5 and thus, the trial might not reach the second stage. 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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1 2 3 4 1. 5 6 7 8 9 10 11 2. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

APPENDIX B VIEWS AND OPINIONS REGARDING THE DEATH PENALTY (FOR QUESTIONNAIRE) Please describe your feelings about the death penalty in your own words. Additionally, how strong are your feelings and how long have you had them? ___________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ Regarding the death penalty, which of the following statements most accurately represents the way you feel? (You may circle one or more than one of the choices): a. I feel that my opposition to the death penalty will make it difficult for me as a juror to reach a verdict of guilty or not guilty, regardless of the facts and law in the case. b. If a person is convicted of a capital crime and the death penalty is requested, I will always vote to impose it, regardless of the facts and the law in the case. c. I am strongly in favor of the death penalty, and would have a difficult time voting against it, regardless of the facts and the law in the case. d. I generally favor the death penalty, but I would base a decision to impose it on the facts and the law in the case. e. I have no opinion either for or against the death penalty, and I could base a decision to impose it based on the facts and the law in the case. f. I am generally opposed to the death penalty, but I believe I can put aside my feelings against the death penalty and impose it if it is called for by the facts and law in the case. g. I am strongly opposed to the death penalty, and I will have a difficult time voting to impose it, regardless of the facts and the law in the case. h. I am personally, morally, or religiously opposed to the death penalty, and would never vote to impose it, regardless of the facts and the law in the case.

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1 3. 2 3 4 5 6 7 8

Regarding the death penalty, which of the following statements most accurately represents the way you feel? _____ I feel strongly that it is important that we have the death penalty as punishment. _____ I feel that it is important that we have the death penalty as punishment. _____ I have no opinion whether it is important that we have the death penalty as punishment. _____ I feel that it is important that we not have the death penalty as punishment. _____ I feel strongly that it is important that we not have the death penalty as

9 punishment. 10 4. 11 12 13 14
Regarding the death penalty, which of the following statements most accurately represents the way you feel? _____ I feel strongly that the death penalty is applied unfairly against minorities. _____ I feel that the death penalty is applied unfairly against minorities. _____ I have no opinion whether the death penalty is applied unfairly against

15 minorities. 16 17 18 19 5. 20 21 22 23 24 25 26 27 6. 28
Please read the following two statements carefully, take time to reflect, and check if either statement applies to you. _____ I feel that my support of the death penalty will make it difficult for me to perform my duty fairly and impartially as a juror in the first stage (guilty or not guilty stage) of the trial. _____ I feel that my opposition to the death penalty will make it difficult for me to perform my duty fairly and impartially as a juror in the first stage (guilty or not guilty stage) of the trial. Please read the following two statements carefully, take time to reflect, and check if either statement applies to you. _____ I feel that the death penalty is applied fairly against minorities. _____ I feel strongly that the death penalty is applied fairly against minorities.

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1 2 3 4 5 6 7 7. 8 9 10 8. 11 12 13 14 9. 15 16 17 18 10. 19 20 21 22 11. 23 24 25

_____ I feel that my support of the death penalty will make it difficult for me to perform my duty fairly and impartially as a juror in the second stage (sentencing hearing) of the trial. _____ I feel that my opposition to the death penalty will make it difficult for me to perform my duty fairly and impartially as a juror in the second stage (sentencing hearing) of the trial. If the defendants are found guilty of a capital count, would you automatically vote for the death penalty, regardless of the facts and the mitigating evidence? Yes _____ No _____ If the defendants are found guilty of a capital count, would you automatically vote for a sentence of life in prison without the possibility of release, regardless of the facts and the aggravating evidence? Yes _____ No _____ If the defendants are found guilty of a capital count, and the evidence and mitigating factors convince you that life in prison without the possibility of release is the appropriate sentence, could you vote for it? Yes _____ No ______ If the defendants are found guilty of a capital count, and the evidence and aggravating factors convince you that the death penalty is the appropriate sentence, could you vote for it? Yes _____ No ______ Do you have any concern about the reactions of family members, friends, neighbors, or other persons to your decisions regarding the verdict or sentence if you serve as a juror in this case? Yes _____ No _____ If yes, why?

26 ____________________________________________________________ 27 28

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1 2 3 12. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

__________________________________________________________________ _____________________________________________________________________________ There has been some publicity recently regarding the death penalty. Would you please describe what you have seen, heard, or read regarding the death penalty. __________________________________________________________________ __________________________________________________________________ __________________________________________________________________

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1 2 3 1. 4 5 6 7 8 2. 9 10 11 12 13 2a. 14 15 16

APPENDIX C WITHERSPOON AND MORGAN QUESTIONS (FOR QUESTIONNAIRE) Would you please explain any personal, moral, religious, or other views or opinions you have regarding the death penalty? Wainwright v. Witt, 469 U.S. 412, 415-16 (1985); Deputy v. Taylor, 19 F.3d 1485, 1499 (3rd Cir. 1994); Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir. 1995). (Citations are for the convenience of the lawyers and the Court only). If you knew that the defendants could be sentenced to death if you as a member of the jury found them guilty of a capital offense, would your views or opinions regarding the death penalty prevent you from reaching a verdict of guilty, or a verdict of not guilty, based upon the evidence and the Court's instructions on the law during the first part of the trial? If your views or opinions would not prevent you from reaching a verdict, would your views or opinions influence you or affect you during deliberations during the first part of the trial? Please explain why. Witherspoon v. Illinois, 391 U.S. 510, 522-23, n.21 (1968).

17 Opponents of Capital Punishment 18 3. 19 20 21 22 4. 23 24 25 26 27 28
Would your views or opinions regarding the death penalty prevent you from imposing the death penalty as an appropriate punishment if the defendants in this case are convicted of a capital offense? See Morgan v. Illinois, 504 U.S. 719, 733-34 (1992). Would your views or opinions regarding the death penalty make it difficult to consider imposing the death penalty as an appropriate punishment if the defendants in this case are convicted of a capital offense? See Morgan v. Illinois, 504 U.S. 719, 733-34 (1992).

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1 5. 2 3

If the jury found the defendants guilty of a capital offense, would you automatically vote to impose a sentence of life imprisonment, no matter what the facts or aggravating factors are? Id.

4 Proponents of Capital Punishment: 5 6. 6 7 8 7. 9 10 11 8. 12 13
Would your views or opinions regarding the death penalty prevent you from imposing a sentence of life imprisonment as an appropriate punishment if the defendants in this case are convicted of a capital offense? Id. Would your views or opinions regarding the death penalty make it difficult to consider imposing a sentence of life imprisonment as an appropriate punishment if the defendants in this case are convicted of a capital offense? Id. If the jury found the defendants guilty of a capital offense, would you automatically vote to impose a sentence of death no matter what the facts or mitigating factors are? Id.

14 All Jurors: (These questions require an instruction on the law applied to capital 15 proceedings to be meaningful.) 16 9. 17 18 19 20 21 22 23 24 25 26 27 28
Would you be able to temporarily set aside or suspend your own personal views or opinions on the death penalty and determine whether the defendants are guilty or not guilty based upon the evidence presented and the Court's instructions on the law? See U.S. v. Flores, 63 F. 3d 1342, 1353 (5th Cir. 1995) (citing Wainwright v. Witt, 469 U.S. 412, 426-29 (1985)). 10. Would you be able to temporarily set aside or suspend your own personal views or opinions on the death penalty and determine the appropriate punishment under the law - whether it be a sentence of death or a sentence of life imprisonment without the possibility of release - based upon the evidence presented and the Court's instructions on the law? Id.

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APPENDIX D PRELIMINARY INSTRUCTIONS FOR PRETRIAL VOIR DIRE (To be read immediately prior to small group or individual interviews) Ladies and gentlemen, please pay close attention to these preliminary instructions

5 I am about to give you prior to the jury selection process. 6
Defendant Luis Cisneros is charged with murder in aid of racketeering,

7 conspiracy to commit interstate murder-for-hire, interstate murder-for-hire, and using a 8 firearm to commit murder. Defendants Felipe Cisneros, Paul Eppinger, and Angel Rivera 9 are charged with conspiracy to commit interstate murder-for-hire, interstate murder-for10 hire, and using a firearm to commit murder. The United States has filed Notices of Intent 11 to Seek the Death Penalty in this case in the event that any of these defendants are 12 convicted of any of the crimes I have just listed. The crimes of murder in aid of 13 racketeering, conspiracy to commit interstate murder-for-hire, interstate murder-for-hire, 14 and using a firearm to commit murder may be punished by imposing a sentence of death or 15 a sentence of life imprisonment without the possibility of release. For this reason, this trial 16 may proceed in two stages. 17
During the first stage of the trial, the jury must unanimously determine beyond a

18 reasonable doubt whether or not the defendants are guilty of any or all offenses charged in 19 the indictment. 20
If the defendants are found guilty of an offense for which a sentence of death may

21 be imposed, the Court will then conduct a separate sentencing hearing to determine the 22 punishment to be imposed. 23
During the sentencing hearing, the jury must first unanimously determine, beyond

24 a reasonable doubt, whether one or more threshold intent factors exist. If the jury finds that 25 no threshold intent factor exists, the jury will return a sentence of life imprisonment 26 without the possibility of release. If the jury unanimously determines, beyond a reasonable 27 doubt, that one or more of the threshold intent factors exist, then the jury will proceed to 28 determine whether one or more statutory aggravating factors exist.

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1

The word "aggravate" means "to make worse or more offensive" or to

2 "intensify." An aggravating factor, then, is a fact or circumstance which would tend to 3 support imposition of the death penalty. 4
During the sentencing hearing, the jury must unanimously determine, beyond a

5 reasonable doubt, whether one or more statutory aggravating factors exist. If the jury finds 6 that no statutory aggravating factor exists, the jury will return a sentence of life 7 imprisonment without the possibility of release. If the jury unanimously determines, 8 beyond a reasonable doubt, that one or more statutory aggravating factors exist, then the 9 jury will proceed to determine whether any of the additional aggravating factors specified 10 by the United States exists. The jury must unanimously determine, beyond a reasonable 11 doubt, whether any additional aggravating factors exist. 12
After the jury has considered the threshold intent factors, the statutory

13 aggravating factors, and any additional aggravating factors, the jury must consider 14 mitigating factors offered by the defendants to determine the appropriateness of imposing a 15 sentence of death. 16
The word "mitigate" means "to make less severe" or "to moderate." A mitigating

17 factor, then, is any aspect of the defendants' background, character, or record, any 18 circumstance of the offense(s), or any other relevant fact or circumstance which would tend 19 to support imposition of a sentence of life without the possibility of release. 20
Each juror must individually determine by a preponderance of the evidence

21 whether any mitigating factor or factors exist. After the jury has considered any mitigating 22 factors, each 23
individual juror must weigh the aggravating factor(s) found by the jury and mitigating

24 factor(s) found by that juror individually or with others. 25
The jury must unanimously determine whether the aggravating factor or factors

26 found to exist "sufficiently outweigh" the mitigating factor or factors found to exist to 27 justify a sentence of death. In the absence of any mitigating factor or factors, the jury must 28

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1 unanimously determine whether the aggravating factor or factors alone are sufficient to 2 justify a sentence of death. 3
Based upon this consideration, the jury, by unanimous vote, will then determine

4 whether the defendants should be sentenced to death or to life imprisonment without 5 possibility of release. 6
Upon a determination that the defendants should be sentenced to death or life

7 imprisonment without possibility of release, the Court will sentence the defendant 8 accordingly. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 Views or Opinions 5 1. 6 7 8 9 10 11 12 13

APPENDIX E JURY SELECTION - CAPITAL QUALIFICATION NO OPINION ON CAPITAL PUNISHMENT

Would you please explain any personal, moral, religious, or other views or opinions you have regarding the death penalty? Wainwright v. Witt, 469 U.S. 412, 415-16 (1985); Deputy v. Taylor, 19 F.3d 1485, 1499 (3rd Cir. 1994); Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir. 1995). 1a. If you have any views or opinions in favor of, or opposition to, the death penalty, would you be able to "lay aside" or "set aside" your views or opinions and render a verdict and sentencing decision based upon the evidence and the Court's instructions on the law? U.S. v. Flores, 63 F.3d 1342,1353 (5th Cir. 1995) (citing and quoting Witt, 469 U.S. at 426-29).

14 Views or Opinions Affecting the Guilt / Innocence Phase 15 2. 16 17 18 19 20 21 22 23
If the Court instructs you that you must determine whether the defendants are guilty or not guilty based upon the evidence presented and the Court's instructions on the law, would you be able to do so? In other words, would you be able to determine whether the defendants are guilty or not guilty based upon the evidence presented and the Court's instructions on the law? United States v. Flores, 63 F.3d 1342, 1353 (5th Cir. 1995) (citing and quoting Witt, 469 U.S. at 426-29). 2a. 2b. Why do you think you would be able to do so? Why do you think you would be unable to do so?

24 Automatic Decision to Impose Sentence of Death or Life Imprisonment 25 3. 26 27 28
If the jury found the defendants guilty of premeditated murder in this case, would you automatically vote to recommend a sentence of death no matter what the facts or mitigating factors are? Morgan v. Illinois, 504 U.S. 719, 733-34 (1992).

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3a.

If you would automatically vote to recommend a sentence of death in this case after finding the defendants guilty of premeditated murder, regardless of the facts or mitigating factors, would you please explain why?

If you found the defendants guilty of premeditated murder in this case, would you automatically vote to recommend a sentence of life imprisonment no matter what the facts or aggravating factors are? Morgan v. Illinois, 504 U.S. 719, 733-34 (1992). 4a. If you would automatically vote to recommend a sentence of life imprisonment in this case after finding the defendants guilty of premeditated murder, regardless of the facts or aggravating factors, would you please explain why?

13 Ability to Consider and Weigh Aggravating and Mitigating Circumstances 14 5. 15 16 17 18 19 20 21 22 6. 23 24 25 26 27 28
If the Court instructs you that you must consider and weigh aggravating and mitigating circumstances in accordance with the evidence presented and the Court's instructions on the law before making a decision to recommend a sentence of death or life imprisonment, would you be able to do so? United States v. Hall, 152 F.3d 381, 412-13 (5th Cir. 1998). 5a. If you are unable to consider and weigh aggravating and mitigating circumstances before making a decision regarding the appropriate sentence, would you please explain why you cannot do so? Would you be able to consider the evidence in support of all aggravating and mitigating factors, based upon the facts of the case and the Court's instructions on the law, and make an appropriate recommendation as to a sentence of death or life imprisonment? Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995). 6a. If you are unable to make an appropriate recommendation as to a sentence of death or life imprisonment, based upon the facts of the case and the

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Court's instructions on the law, would you please explain why you cannot do so?

3 Ability to Impose Appropriate Sentence 4 7. 5 6 7 8 9 10 11 8. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
If the evidence in this case establishes that a sentence of death is appropriate under the law, would you be able to vote to impose the death penalty on the defendants? Gray v. Mississippi, 481 U.S. 648, 653 (1987). In other words, can you lay aside or set aside any views or opinions in opposition to the death penalty and render a sentencing decision based upon the evidence and the law? 7a. Why do you think you would be able to do so? 7b. Why do you think you would be unable to do so? If the evidence in this case establishes that a sentence of life imprisonment is appropriate under the law, would you be able to impose a sentence of life imprisonment on the defendants? Gray v. Mississippi, 481 U.S. 648, 653 (1987). In other words, can you lay aside or set aside any views or opinions in favor of the death penalty and render a sentencing decision based upon the evidence and the law? 8a. Why do you think you would be able to do so? 8b. Why do you think you would be unable to do so?

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APPENDIX E JURY SELECTION - CAPITAL QUALIFICATION OPPONENTS OF CAPITAL PUNISHMENT Would you please explain any personal, moral, religious, or other views or opinions you have regarding the death penalty? Wainwright v. Witt, 469 U.S. 412, 415-16 (1985); Deputy v. Taylor, 19 F.3d 1485, 1499 (3rd Cir. 1994); Antwine v. Delo, 54 F.3d 1357, 1369 (8th Cir. 1995). Are you personally, morally, religiously, or otherwise opposed to the use or imposition of the death penalty for those convicted of premeditated murder? Witt, 469 U.S. at 415-16; Taylor, 19 F.3d 1465, 1499; Delo, 54 F.3d 1357, 1369. 2a. Would you please explain why you are opposed to the use or imposition of the death penalty for those convicted of premeditated murder? If you knew that the defendants could be sentenced to death if you as a member of the jury found them guilty of a capital offense, would your views or opinions regarding the death penalty prevent you from reaching a verdict of guilty as to premeditated murder during the first part of the trial? Witherspoon v. Illinois, 391 U.S. 510, 522-23 n.21 (1968). 3a. If your views or opinions regarding the death penalty would prevent you from reaching a verdict of guilty as to premeditated murder during the first part of the trial, would you please explain why? If you knew that the defendants could be sentenced to death if you as a member of the jury found them guilty of a capital offense, would your views or opinions regarding the death penalty influence or affect your ability to consider a verdict of guilty as to premeditated murder during the first part of the trial? Witherspoon, 391 U.S. at 522-23 n.21. 4a. Would you please explain how your views or opinions regarding the death penalty would influence or affect your ability to consider a verdict of guilty during the first part of the trial?

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1 5. 2 3 4 5 6 7 8 6. 9 10 11 12 13 14 15 16 7. 17 18 19 20 21 22 23 24 8. 25 26 27 28

Would you be able to temporarily set aside or suspend your own personal views or opinions on the death penalty and determine whether the defendants are guilty or not guilty based upon the evidence presented and the Court's instructions on the law? U.S. v. Flores, 63 F.3d 1342, 1353 (5th Cir. 1995) (citing and quoting Witt, 469 U.S. at 426-29). 5a. Why do you think you would be able to do so? 5b. Why do you think you would be unable to do so? Would your views or opinions regarding the death penalty influence or affect your decision to recommend the death penalty as an appropriate punishment if the defendants in this case were to be convicted of premeditated murder? Morgan v. Illinois, 504 U.S. 719, 728 (1992). 6a. If your answer to the preceding question is yes, would you please explain how your views or opinions would influence or affect your decision to recommend the death penalty as an appropriate punishment if the defendants were convicted of premeditated murder? Would your views or opinions regarding the death penalty prevent you from recommending the death penalty as an appropriate punishment if the defendants in this case were to be convicted of premeditated murder? Morgan v. Illinois, 504 U.S. 719, 733-34 (1992). 7a. Would you please explain how your views or opinions regarding the death penalty would prevent you from recommending the death penalty as an appropriate punishment if the defendants in this case were to be convicted of premeditated murder? If you found the defendants guilty of premeditated murder in this case, would you automatically vote to recommend a sentence of life imprisonment no matter what the facts or aggravating factors are? Morgan, 504 U.S. at 733-34. 8a. If you would automatically vote to recommend a sentence of life imprisonment in this case after finding the defendants guilty of

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premeditated murder, regardless of the facts or mitigating factors, would you please explain why? If you are personally, morally, religiously, or otherwise opposed to the death penalty, can you imagine any case or any set of circumstances under which you would recommend that a sentence of death be imposed upon a defendant? Flores, 63 F.3d at 1354. 9a. If so, would you please describe the case or set of circumstances under which you could recommend the death penalty, despite your own personal, moral, religious, or other opposition to the death penalty? If the Court instructs you that you must consider and weigh aggravating and mitigating circumstances in accordance with the evidence presented and the Court's instructions on the law before recommending a sentence of death or life imprisonment, would you be able to do so, despite your views or opinions regarding the death penalty? United States v. Hall, 152 F.3d 381, 412-13 (5th Cir. 1998). 10a. If you are unable to consider and weigh aggravating and mitigating circumstances before making a decision to recommend a sentence of death or life imprisonment, because of your views or opinions regarding the death penalty, would you please explain why you cannot do so? Would you be able to consider the evidence in support of all aggravating and mitigating factors, based upon the