Free Response to Motion - 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 United States Attorney's Office 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., UNITED STATES' OMNIBUS RESPONSE TO DEFENDANTS' MOTIONS RELATED TO JURY SELECTION

9 10 Defendants. 11 12 13 14 15 16 17 18 19 20

THE UNITED STATES OF AMERICA responds as follows to a series of motions recently filed by Defendants concerning jury selection. The motions are: Amended Motion for Oral Argument on Jury and Voir Dire Motions and for Suspension of the Rules (Dkt 1291); Proposed Overview of Jury Selection Process (Dkt. 1280); Motion for Individual and Sequestered Voir Dire (Dkt. 1260); Motion to Permit Attorney Conducted Voir Dire (Dkt. 1259); Motion for Expanded Voir Dire (Dkt. 1257); and Motion Regarding Procedures Related to Jury Selection (Dkt. 1234).

A. Amended Motion for Oral Argument on Jury and Voir Dire Motions and for 21 Suspension of the Rules (Dkt 1291). 22 The United States takes no position on this motion. The United States does believe, 23 however, that the Court can resolve many of the issues presented in the motions without oral 24 argument. 25 26 B. Proposed Overview of Jury Selection Process (Dkt. 1280). This overview is accompanied by a flow chart that Defendants also have filed. See Dkt.

27 1282. The United States objects to several of the proposed steps on the grounds that they are 28 legally unnecessary, logistically burdensome, and undoubtedly wasteful of the Court's and

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1 court staff's limited resources. The United States specifically objects to the following 2 proposals: 3 1. Filling out of jury questionnaire need not occur at the courthouse. See Mot. at 5.

4 Defendants offer no reason why this step cannot be accomplished by the prospective jurors via 5 the United States mail. To the extent that Defendants are concerned that someone besides the 6 prospective juror actually filled out the questionnaire ­ a reason that Defendants proffered at 7 the status conference on July 29th, see Tr. at 18 ­ the Court can solve that dilemma by asking 8 the jurors when they do come to the courthouse for individual voir dire whether they in fact 9 filled out the questionnaire they signed and returned. 10 2. Additional level of "hardship" review. See Mot. at 6. As with every other trial that

11 takes place in this courthouse, the Court and its jury administrators are perfectly capable of 12 handling hardship excusals without the interference of counsel for either side. With the 13 supervision and ultimate authority residing in the Court, the jury administrators are specifically 14 trained and equipped to carry out the process of granting hardship excusals. Allowing the 15 lawyers to meddle with this process will unduly prolong the jury selection process, with 16 virtually no value added to the process. The specter of lawyers litigating whether the Court 17 should excuse a few thousand venirepersons on the basis of hardship can be and should be 18 avoided. 19 The United States does agree, however, that the parties should jointly confer after

20 receiving the questionnaires to determine whether the parties can stipulate to any "for cause" 21 challenges not related to hardship. The parties have to review the questionnaires anyway and, 22 even if only 20-30 prospective jurors can be culled from the list, doing so adds value to the 23 process and reduces the fiscal and logistical burden on the Court's staff. 24 25 3. Assignment of jurors to panels for voir dire examination. See Mot. at 6. Defendants suggest that 5-15 prospective jurors be brought in for individual questioning.

26 The United States suggests, however, that 25-30 is a more reasonable number. 27 28
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In addition, Defendants propose that counsel for the parties meet with the jury

2 administrators to decide which jurors should be brought in for individual questioning. See 3 Mot. at 7. There is no good reason for lawyers to be involved in that purely ministerial 4 process. The United States suggests that Jurors Numbers 1-25 be scheduled for the first day, 5 Numbers 26-50 the second day, and so on. Once again, allowing the lawyers to participate in 6 this phase of the process will do nothing but slow the process down without contributing 7 anything of value. 8 9 4. Individual voir dire examination and general voir dire. See Mot. at 7-8. The United States does not oppose Defendants' request that potential jurors be individually

10 questioned on the issue of capital punishment and other sensitive topics. The United States 11 suggests, however, that the Court first conduct the "general voir dire" with the entire group of 12 the 25-30 venirepersons brought in on a particular day. It may happen that the Court will 13 excuse one or more of them based on their answers in the general voir dire. Once the general 14 voir dire is completed, the Court can proceed with the individual voir dire of the remaining 15 venirepersons. 16 17 5. Exercise of peremptory challenges. See Mot. at 8-9. The Court should employ in this case the simultaneous strike method that it employs in

18 every other criminal trial it conducts. The hybrid method that Defendants suggest will only 19 build more delay into the process. It is worth remembering that peremptory strikes are matters 20 not of constitutional law, but of legislative grace. The United States also objects to Defendants 21 being accorded additional strikes. Defendants have been engaged in a single, unitary joint 22 defense for nearly three years. 1/ They have filed joint motions, joint responses, and joint

23 replies. They have made decisions as a single body for virtually the entire pendency of this 24 litigation. Consequently, they are not legally entitled to additional peremptory challenges. 25 26 Defendants Austin and Reyes signed on to the joint defense agreement shortly after 27 their arrests in 2004 and 2005, respectively. 28
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C. Motion for Individual and Sequestered Voir Dire (Dkt. 1260). The United States does not oppose this motion. D. Motion to Permit Attorney Conducted Voir Dire (Dkt. 1259). The United States objects to this motion and urges the Court to unilaterally conduct the

5 voir dire in this case. The law does not require the Court to allow the attorneys for either side 6 to question the jurors. See Fed. R. Crim. P. 24. Indeed, if Congress had thought attorney7 conducted voir dire to be essential in capital cases, it could have written such a requirement 8 into the rule. The attorneys are quite capable of submitting questions to the Court and the 9 Court is quite capable of deciding which questions to ask. By January 10th, this Court will 10 have an intimate knowledge of the facts of this case and, with the assistance of the parties' 11 submitted written questions, will be able to conduct an adequate and legally sufficient voir dire 12 examination. The Court's examination of the jurors will allow counsel for both sides to make 13 challenges for cause and to intelligently exercise their peremptory challenges. 14 It is an understatement to suggest that, if the Court conducts the voir dire examination on

15 its own, the process will move much more efficiently than if the lawyers conduct it ­ and just 16 as fairly. 2/ In addition, the Court will avoid the spectacle that will play out time after time

17 if the lawyers question the jurors: one side's lawyers artfully endeavor to set up a juror for a 18 challenge for cause and the other side's lawyers try just as hard to rehabilitate the juror to force 19 the adversary to use one of its peremptory strikes on that juror. The back-and-forth volleying 20 of a juror between opposing counsel muddies the record, unnecessarily prolongs the jury 21 selection process, and results in a jury that is no more fair to both sides than if the Court did 22 the entire voir dire itself. 23 Defendants' concerns about the "appearance of impropriety," Mot. at 6, and the

24 "[j]urors['] defer[ring] too much to the Court's position and prestige," Mot. at 7, are decidedly 25 Defendants do not even advert to the substantial amount of time it will take for a 26 lawyer for each defendant to question the individual venireperson. Whether there are five, seven, or nine defendants on trial, the time needed for counsel to question the venire will be 27 extraordinary. 28
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1 off-base. This Court has been selecting juries for more than 16 years and knows how to do so 2 while maintaining strict neutrality. Furthermore, potential jurors are probably more

3 comfortable answering questions posed by the Court ­ which the venire will recognize as an 4 impartial umpire ­ than questions posed by the obviously-biased lawyers for either side. 5 6 E. Motion for Expanded Voir Dire (Dkt. 1257). In principal, the United States does not oppose the concept of expanded voir dire in a

7 capital case. The degree of questioning proposed by the defense, however, is vastly more than 8 the Constitution requires. 9 Defendants cite a number of academic studies that they claim support their position for

10 expanded voir dire. See Mot. at 8-13. The views and purported studies of non-practicing 11 academics are not particularly helpful to the Court in deciding how to conduct the voir dire 12 examination in this case. A better approach would be to figure out a series of concrete 13 questions applicable to this particular case which could result in the seating of a fair and 14 impartial jury. Furthermore, Defendants apparently overlook that the jury will be instructed 15 by the Court on what the law is and will be sworn to follow the law. Thus, any misconceptions 16 that the jury may have, see Mot. at 8, will be cured by the Court's instructions on the law. The 17 Court's instructions are at least equally as effective in dispelling any misconceptions the jurors 18 may have as is voir dire examination. 19 Consequently, although the Court should conduct an expanded voir dire examination in

20 this case, the examination need not be nearly as wide-ranging as that proposed by the defense. 21 The parties will be able to make challenges for cause and exercise their peremptory challenges 22 after a voir dire examination that is significantly more focused than the one proposed by the 23 defense. 24 25 F. Motion Regarding Procedures Related to Jury Selection (Dkt. 1234). In this motion, Defendants request four separate bases of relief. The United States does

26 not object to the first, third, or fourth bases of relief. For their second claim of relief, 27 Defendants request that the Court issue an 28
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order requiring the Clerk of the Court to note in detail and with specificity on the juror qualification form the reason why a person excused from jury service in this case on the basis of undue hardship or extreme inconvenience qualified for that excusal, including, but not limited, to the nature and content of any input by or interaction with the Court that results in the person being excused on those bases[.] Mot. at 1.

5 Title 28, United States Code, Section 1866(d) provides that 6 7 8 Whenever a person is disqualified, excused, exempt, or excluded from jury service, the jury commission or clerk shall note in the space provided in the juror qualification form or on the juror's card drawn from the qualified jury wheel the specific reason therefor.

9 28 U.S.C. § 1866(d) (emphasis added). 10 Defendants submit that, despite its clear language, this statutory excerpt actually requires

11 the jury administrator to "set forth, with specificity, the details why any particular person is 12 excused from jury service." Mot. at 6. That is not, however, what the statute requires. 13 Moreover, the version propounded by Defendants is a far more labor-intensive and drawn-out 14 process than the one contemplated by the plain language of the statute. The jury administrator 15 will comply with § 1866(d) so long as she notes on the juror qualification form that the juror 16 was excused for undue hardship. The statute does not require that the jury administrator 17 distinguish on the form that the hardship was employment-related, health-related, or child care18 related. All the plain language of the statute requires is that the excusal is attributed to undue 19 hardship, as opposed to non-residency or age or a felony criminal history. Defendants still will 20 be able to make any claims concerning the alleged unlawfulness of the jury selection process. 21 22 23 24 25 26 27 28
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Respectfully submitted this 17th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Gregory J. Fouratt GREGORY J. FOURATT Special Assistant United States Attorney

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CERTIFICATE OF SERVICE

2 I hereby certify that on October 17, 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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