Free Motion for Miscellaneous Relief - 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 AMENDED MOTION FOR ORAL ARGUMENT ON JURY AND VOIR DIRE MOTIONS AND FOR SUSPENSION OF THE RULES

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, pursuant to Local Rules of Civil Procedure, 83.6 and 7.2(F) and Local Rules of Criminal Procedure 57.17 and 12.1, hereby moves the Court to permit oral argument on the various motions concerning the jury selection process and, in order to accommodate this request, to suspend the requirements of the local rules LR Civ. 7.2(F) and LR Crim. 12.1, all as is set forth with greater particularity in the accompanying Memorandum of Points and Authorities. Respectfully submitted this 13th day of October, 2005.

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

Case 2:03-cr-00730-SRB

Document 1291

Filed 10/13/2005

Page 1 of 4

MEMORANDUM OF POINTS AND AUTHORITIES The defendants have filed five (5) motions concerning the conduct, substance, and logistics of voir dire and of seating a jury for this case. These motions are: Motion Regarding Procedures Relating to Jury Selection [Doc. 1234]; Motion For Expanded Voir Dire and Memorandum in Support Thereof [Doc. 1258]; Motion to Permit Attorney Conducted Voir Dire [Doc. 1259]; Motion for Individual and Sequestered Voir Dire [Doc. 1260]; Proposed Overview of Jury Selection Process [Doc. 1280]; and Notice of Filing a Proposed Jury Questionnaire [Doc. 1222]. Taken together, this set of motions proposes a procedure by which the Court would conduct jury selection, from the sending out of initial questionnaires through to the exercise of peremptory challenges. They are motions which address the breadth and depth of the jury selection process, a process which is critical to the empanelment of a fair and impartial jury for the trial of a capital matter. Counsel neglected to comply with LR Civ. 7.2(F) (and, by reference, LR Crim. 12.1) require a party desiring oral argument to place "oral argument requested" in the caption of the pleading in all except the Proposed Overview of Jury Selection Process. However, LR Crim. 57.17 and LR Civ. 83.6 permit the Court to suspend any local rule "upon application . . . for good cause shown." LR Civ. 83.6. Counsel would request the Court to suspend this local rule so that these important and complex issues concerning the methods and manners of seating a jury in this manner may be more fully discussed between court and counsel for both sides. Counsel would urge the Court to find that the "good cause" shown for this request for suspension of rules is that the matters for which oral argument is now sought are critical to the trial of this matter; that the defendants are not dilatory in making this request (as the government's time to respond has not expired on any of these motions), and that there is no prejudice to the Court or the government by

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allowing this request for oral argument to be submitted in the current fashion. Moreover, counsel has appropriately requested argument on the Proposed Overview of Jury Selection Process, which topic would subsume all the others in any event. It is a small step, indeed, from granting oral argument on that pleading alone to granting it on all these related pleadings. Given the importance of their subject matter, the Court should hear counsel on all of these motions. For all these reasons, counsel would request the Court to invoke LR Crim. 57.17 and LR Civ. 83.6, suspend the operation of LR Crim. 12.1 and LR Civ. 7.2(F) requiring the request for oral argument to be placed in the caption of the pleading, and to grant this request for oral argument on the motions.
Respectfully submitted this 13th day of October, 2005.

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

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CERTIFICATE OF SERVICE I hereby certify that on October 13, 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 October 13, 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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