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 PROPOSED OVERVIEW OF JURY SELECTION PROCESS (Oral Argument Requested)

The Defendant, Paul Eppinger, through counsel Michael B. Bernays, and on behalf of Luis Cisneros, Felipe Cisneros, Raymond Llamas, Angel Rivera, Lorena Cisneros, Richard Trujillo, Benjamin Austin and Juan Reyes, hereby submits this Memorandum concerning their proposal for the overall jury selection procedures to be used by the Court in seating a petit jury for the trial of this matter. Respectfully submitted this 7th day of October, 2005.

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

Case 2:03-cr-00730-SRB

Document 1280

Filed 10/07/2005

Page 1 of 10

I.

Introduction In five previous pleadings filed with this Court, the Defendants have moved for the

use of a variety of procedures during the voir dire process which, when implemented, should result in both an efficient use of time in selecting the petit jury and in the empaneling of a jury unbiased in its attitudes and not pre-disposed to any belief as to the guilt or innocence of any defendant or to any belief as to the appropriate sentence to be imposed should the trial result in a conviction of any defendant. These requests include an expansion of the topics and procedures used to voir dire the venire (Motion For Expanded Voir Dire and Memorandum in Support Thereof, filed 10/3/05, Docs. 1257 and 12581), the use of jury questionnaires (Defendant's Notice of Filing A Proposed Jury Questionnaire, filed 9/16/05, Doc. 1222), and the implementation of procedures that include an opportunity for counsel for each party to conduct at least some of the voir dire (Motion To Permit Attorney Conducted Voir Dire, filed 10/3/05, Doc. 1259) and to have some of the more critical topics (such as punishment views, exposure to pre-trial publicity, views on race and on gang violence) explored during individual and sequestered voir dire (Motion For Individual and Sequestered Voir Dire, filed 10/3/05, Doc. 1260). We have also filed a memorandum addressing the manner in which the Court should make the initial hardship determinations in light of The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. (Defendants' Motion For Procedures Related To Jury Selection, filed 9/27/05, Doc. 1234). The purpose of the present Motion is to propose to the Court a time line and a method by which all these various procedures may be fairly and efficiently implemented. Before turning to the specific proposals concerning the procedures to be used in selecting a petit jury to hear this case, it is worth remembering that the process of selecting a capital jury is one of the most important proceedings the courts of the United States This document was inadvertently filed twice due to counsel's incorrect belief that the first attempted filing had been aborted. Both documents are identical, and counsel would urge the Court and all other parties to treat them as a single filing.

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undertake. It is a proceeding that affects the very life of the accused as well as the jurors that are asked to devote a significant portion of their lives to the trial and possibly to make a decision whether another human being should live or die. Before placing a juror in that position, the Court must be satisfied that the juror carries no prejudices, biases or preformed conceptions about the case that would render him or her less than impartial as required by the fifth, sixth and eighth amendments to the United States Constitution. See Morgan v. Illinois, 504 U.S. 719 (1992). Voir dire is the process by which the court and the parties become informed of the jurors attitudes and thus are able to judge their fitness for jury duty. As such, voir dire becomes critical to the fundamental fairness required of a capital trial. Defendants urge the Court to treat voir dire so that it fosters the greatest possible disclosure from the veniremembers and maximizes the fund of knowledge from which the Court and the parties will make decisions about who to seat. Open-ended questioning, conducted in significant part by the attorneys in a setting where the potential juror is comfortable revealing their innermost thoughts (i.e., individual and sequestered voir dire) is the best approach to achieving this maximization of information from potential jurors. It is well to remember that voir dire is intended to maximize the availability of juror information: The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror's views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venire-persons demeanor. We reiterate that voir dire should proceed with the conscious object of providing the court and counsel alike with sufficient information with which to challenge potential jurors intelligently - whether for cause or peremptorily. State v. Biegenwald, 126 N.J. 1, 39, 594 A.2d 172, 192 (1991). Moreover, it is also evident that open-ended questioning fosters this information gathering process:

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Given the important, delicate, and complex nature of the death qualification process, there can be no substitute for thorough and searching inquiry by the trial court into each individual' attitude s concerning the death penalty. An important ingredient in this inquiry is the use of open-ended questions, which in our opinion are most likely to provide counsel and the court with insight into jurors' opinions and biases. Once the trial court has elicited from each juror sufficient information concerning that person' s predilections--which are much more likely to be expressed freely when the juror is not constrained by an instruction from the court on what kind of answer leads to automatic dismissal--then counsel' s ability to formulate and argue for excusal for cause is enhanced. More importantly, the trial court will have a more complete record on which to apply the Adams-Witt2 standard in granting or denying excusals for cause. This enhanced record is imperative to preserve society' interest in a fair s trial. Greater disclosure will also undoubtedly aid both the defense and prosecution in the exercise of their respective peremptory challenges. State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172, 1182 (1988). In summary, Defendants with this and their related motions on voir dire, are requesting that the Court recognize the vital importance of a voir dire process which permits the parties the fullest opportunity possible to conduct probing and wide-ranging questioning of veniremembers. It should be done in a way that encourages the flow of information from the veniremembers, and allows counsel an opportunity to delve deeply into attitudes and beliefs held by veniremembers that would be relevant to their fitness to sit on this jury. With these standards in mind, the Defendants urge the Court to follow the procedures set forth below as to the logistics of implementing their collected voir dire proposals. Adams v. Texas, 448 U.S. 38 (1980) and Wainwright v. Witt, 469 U.S. 412 (1985), which together established the rule that jurors may only be excused for cause if their views on punishment issues would "prevent or substantially impair" their ability to follow the law and the court's instructions.

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II.

Suggested procedures for jury selection The following is our proposal to the Court as to how jury selection should proceed.

These proposals have been summarized in a flow chart which is attached to this motion as Exhibit A. In order to have enough time for all the parties to review the numerous questionnaires and to digest and catalogue the information gleaned from them, it is suggested that the initial round of groups of jurors coming to Phoenix to fill out questionnaires take place in November, perhaps during the second and third weeks when the Court has asked us to reserve our calenders. A. Completion of Written Juror Questionnaires in November, 2005 Prospective jurors would be brought into the court room in groups of some manageable size (perhaps 100 or less at a time). We anticipate that the process could accommodate two such groups a day. The Court would give the prospective jurors a brief introduction to the case, and would also provide the prospective jurors with an estimate of the anticipated length of the trial and explain the purpose of the juror questionnaire. The Court also would instruct the jurors to avoid any further media coverage about the case and to refrain from any discussion of the case or case issues, the contents of the juror questionnaire and the juror's responses to the questions with anyone including the juror's family and household members, co-workers and employer, neighbors, friends and the media. Following this introduction, the prospective jurors would be sworn and asked to complete the juror questionnaire without consultation with their fellow jurors. Upon completion of the questionnaire the prospective jurors would be dismissed with directions to await further instruction from the Jury Commissioner's office as to the date and time each would next be expected to appear for individual voir dire examination. A sufficient number of copies of each questionnaire would then be made to distribute to the Court , each defense team and the government.

B.

Review of juror questionnaires to identify jurors with personal hardships and

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potential cause challenges. Upon receipt of the copies of the juror questionnaires, counsel for the government and defendants independently would review the questionnaires. Counsel for each party would then meet and confer to see if agreement could be reached on a list to submit to the Court identifying those prospective jurors who counsel would stipulate should be removed for hardship prior to the outset of voir dire.3 This list would include juror number and a brief statement indicating the nature of the hardship. Counsel would prepare a second list containing the juror number and question number of items indicating areas for stipulated challenge for cause. Prospective jurors whose number appeared on both the government and defendants lists for either hardship or cause would be automatically excused upon review and agreement by the Court to do so. Counsel would prepare these lists, exchange them with each other and submit them to the Court between their receipt of the questionnaires and some date, perhaps in mid-December, when the parties would gather in Phoenix to make a record on the stipulated excusals approved by the Court. Only those veniremembers whose excusal is agreed to by all parties would be excused during this phase. There would be no debating or arguing whether a potential juror should be removed; rather, the objection of any party, government or defendant, to a veniremember's excusal would result in that veniremember being included in further voir dire. C. Assignment of jurors to panels for voir dire examination. The prospective jurors remaining after the removal of jurors by mutual agreement for hardship and/or cause would be assigned to panels of five to fifteen prospective jurors (the number being dependent on efficiency with which the process proceeds) and given a

Including a further hardship review at this stage is both pragmatic, as jurors who did not raise such concerns in the initial review are sure to surface, and efficient, as it would allow the Court to forego or circumscribe the initial review by the Jury Commissioner.

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time to appear for voir dire examination in the courtroom. The revised list of prospective jurors remaining in the pool would be prepared by the Jury Commissioner and distributed to trial counsel. This list would follow the master list originally prepared by the Jury Commissioner and would set forth the order in which the prospective jurors would appear for individual voir dire examination. The parties would meet with the Jury Commissioner's Office to cooperate in scheduling panels of potential jurors to be assigned to a certain date to come back to court and begin the oral voir dire. The Commissioner would then send summons to the prospective jurors in accordance with that cooperatively-arrived at schedule. D. Individual voir dire examination on punishment and other sensitive topics. When individual voir dire begins, the first panel of prospective jurors would be brought into the courtroom and seated in the jury box. The Court would introduce the case and trial participants to the prospective jurors in this smaller panel and take any additional requests for hardship from prospective jurors. Prospective jurors remaining after any additional hardship excuses would be sent out of the courtroom to await individual voir dire examination. They again would be instructed by the Court not to discuss the case, the parties or any news related to the trial with anyone including each other and court personnel. Each prospective juror in the panel would then be questioned individually in the order in which they appear on the master list. The Court would ask the prospective juror follow up questions based on its review of the juror's questionnaire. Following the juror's responses and in alternate fashion, counsel for the government and the defendants would ask additional follow up voir dire questions. The questions would be based upon the attorneys' analysis of the juror's questionnaire or in follow up to answers provided in oral voir dire to the Court or opposing counsel. Upon completion of the individual voir dire the prospective juror would be asked to leave the courtroom so that any challenge for cause might be taken up with the Court

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outside the presence of the juror. Following the Court's decision on any motion for cause, the juror would be called back into the courtroom and notified whether he or she is excused from jury service in the case or would be dismissed for the day and required to call the Jury Commissioner for further instructions as to when to appear for the next stage of jury selection. Prior to the juror's leaving the courtroom the prospective juror would again be given the standard admonition. This process would continue until all veniremembers had

been questioned. After this round of questioning, the venire would be regrouped into a larger, but still manageable set of pools for general voir dire conducted in the courtroom. E. General voir dire These larger pools of prospective jurors would be scheduled to return for general voir dire, which would follow more nearly the standard format for voir dire in less complex, non-capital cases. Counsel for any party could submit questions for the Court to ask, in addition to any the Court may have itself. Counsel would be permitted some latitude in asking followup questions based on jurors' responses. Once all parties have passed a sufficient number of potential jurors to constitute twelve plus the total number of defense peremptories allowed, plus the total number of government peremptories allowed, plus the number of alternates to be chosen, plus the number of alternate peremptories allowed for each side, voir dire would be complete. F. Exercise of peremptory challenges. Defendants suggest to the Court that a hybrid method of final juror selection be implemented. The exercise of the peremptory challenges would follow the Arizona state method, with each side alternating their strikes so as to increase each side's ability to intelligently and effectively exercise those challenges. The alternation would have to be asymmetrical to account for the greater number of strikes afforded multiple defendants under Rule 24(b), Fed. R. Cr. Proc., assuming the court were to grant additional challenges. The selection of alternates would follow the federal method of selection at the beginning of trial, with separate peremptory challenges as set forth in Rule 24(c), Fed. R.

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Cr. Proc. Counsel would suggest that, though the alternates are known to be alternates to the litigants, that they be seated in amongst the non-alternates (that is, called out of order) so that their status as alternates not be known to them. III. Conclusion The procedure set forth above is designed to maximize the litigants' abilities to pick a fair and impartial jury and to minimize the frustration and waiting periods for the prospective jurors. Counsel urge the Court to find that it achieves this goal, and to therefor adopt it. Respectfully submitted this 7th 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 7, 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 7, 2005, I sent a copy of this document by handdelivery 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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