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 MOTION TO PERMIT ATTORNEY CONDUCTED VOIR DIRE

The Defendants, Paul Eppinger, and all other JDA defendants, through counsel, Michael B. Bernays, hereby move the Court to permit attorney-conducted voir dire to insure that the defendants are afforded their rights under the Fifth, Sixth and Eighth Amendments to the United States Constitution to sufficiently probing and searching voir dire to enable them to articulate their motions to strike potential veniremembers for cause and intelligently exercise the peremptory strikes they are afforded all for the reasons set forth the accompanying Memorandum of Points and Authorities. Respectfully submitted this 3rd day of October, 2005. /s/ Michael B. Bernays Michael B. Bernays Attorney for Defendant Eppinger

Case 2:03-cr-00730-SRB

Document 1259

Filed 10/03/2005

Page 1 of 10

MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction. The defendants are indicted in a multi-count Racketeering Influenced Controlled Organization indictment which includes allegations of homicides committed pursuant to that RICO conspiracy. Four of the defendants, Luis Cisneros, Felipe Cisneros, Paul Eppinger, and Angel Rivera, face the death penalty. The case involves highly sensitive issues in today's society: capital punishment, gang violence, and the risk of racial prejudice (Mr. Eppinger is African-American and American Indian; the other defendants are Hispanic). We urge the Court to permit attorney-conducted voir dire on these highly sensitive topics. Such voir dire will facilitate the eliciting of honest opinions from the jurors, will increase efficiency in the conduct of that voir dire (as the attorneys are in a better position to know the facts of the case and the areas into which additional voir dire may be necessary), and because attorney-conducted voir dire is more effective than judgeled voir dire in facilitating open communication from potential jurors. Rule 24(a), Fed. Rules of Crim. Proc., gives trial courts discretion in deciding the scope and method of jury voir dire. Only through effective use of voir dire, however, that defendants in a capital prosecution can uncover and neutralize potential juror biases and prejudices. See generally Turner v. Louisiana, 379 U.S. 466 (1964); Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Murray, 476 U.S. 28 (1986); Morgan v. Illinois, 504 U.S. 719 (1992). In this case, there is no reason why the Court should not exercise its discretion it under Rule 24(a) to permit attorney-conducted voir dire so that the full exposition of jurors' attitudes can be obtained. II. Attorney-conducted voir dire is particularly necessary in capital cases. Federal courts have recognized, even in non-capital cases, the importance of attorney participation in order to insure both parties a more effective jury selection process. See, e.g., United States v. Ible, 630 F.2d 389 (5th Cir. 1980); United States v. Ledee, 549 F.2d 990

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(5th Cir. 1977). As stated by the Court: While Federal Rule of Criminal Procedure 24(a) gives wide discretion to the trial court, voir dire may have little meaning if it is not conducted at least in part by counsel. The "federal" practice of almost exclusive voir dire examination by the court does not take into account the fact that it is the parties, rather than the court, who have a full grasp of the nuances and the strengths and weaknesses of the case . . . experience indicates that in the majority of situations questioning by counsel will be more likely to fulfill the need than an exclusive examination in general terms by the trial court. ... More recently, records reviewed in this court reflect a new pattern by trial courts. The trial judge will explain the nature of the case in general terms, point out the parties and counsel, cover the most basic points of law (burden of proof, presumption of innocence, right to remain silent, etc.), explain the procedures and schedule to be followed and then turn the questioning over to trial counsel. We encourage this approach. United States v. Ible, 630 F.2d at 395 and n.8. No where is the need for attorney-conducted voir dire more compelling than in a capital case. In general, death penalty cases are different, as the Supreme Court has acknowledged.1 This heightened concern for the administration of a capital punishment system calls for a differing approach, not only substantively, but procedurally. Voir dire is one such area calling for a different approach. The legislative branch has also recognized that death penalty cases are different when it comes to determining the procedures by which a jury should be selected. For example, 18 U.S.C. §3432 requires that "at least three entire days before commencement of trial . . .a person charged with . . . [a] capital offense . . . shall . . . be furnished with . . . lists of the veniremen." This differs from the procedure in non-capital cases. Additionally, Fed.

[E]very member of this Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any punishment, and hence must be accompanied by unique safeguards. . .." Spaziano v. Florida, 468 U.S. 447, 468 (1985) (Stevens, J., dissenting); See also Woodson v. North Carolina, 428 U.S. 280, 304-305 (1976).

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Crim. Proc. Rule 24(b) requires "twenty peremptory challenges" for "each side" in cases where the "offense charged is punishable by death . . .." Otherwise, the defense is entitled to only 10 peremptory challenges. Even the executive branch recognizes the need for a different, more measured approach to prosecutorial decision making in capital cases, imposing a capital case review process with the Department of Justice in Washington, D.C., and requiring final approval by the Attorney General himself, prior to authorizing a capital prosecution. Experience and practice tell us that we should embrace differing approaches to important decision-making processes in a capital case than we might in non-capital situations. The use of attorney-conducted voir dire in helping to chose a capital jury is an example. An important consideration supporting the use of attorney-conducted voir dire in capital cases is the experience from of capital cases in state courts. These cases demonstrate that extracting reliable information regarding veniremembers' views on the death penalty is a delicate operation. To persons not familiar with the process, it can be confusing and complex. "Given the important, delicate and complex nature of the death qualification process, there can be no substitute for thorough and searching inquiry . . .." State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988). For instance, many jurors' initial responses to death qualifying questions cannot be taken at face value. See Gray v. Mississippi, 41 U.S. 648, 662-3 (1987) ("[D]espite their initial responses, the veniremembers might have clarified their positions upon further questioning and revealed that their concerns about the death penalty were weaker than they originally stated. It might have become clear that if they could set aside their scruples and serve as jurors.") The court in Wainwright v. Witt, 469 U.S. 423 (1985), recognized that a searching inquiry is necessary before jurors can be excluded on the basis of moral, philosophical or practical reservations regarding a particular punishment. "[T]hese veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish

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to hide their true feelings." Id. at 425. This last point, that veniremembers may not have expressed their true feelings about the death penalty, is particularly apt with regard to those veniremembers who may harbor hardened pro-death penalty views. Jurists have recognized the disproportionate number of death penalty opponents who identify themselves compared to death penalty advocates: [A] far greater percentage of death penalty skeptics identify themselves at voir dire than do death penalty supporters. Review of the voir dire transcripts of automatic appeals decided by this court confirms the existence of the problem. Although death penalty supporters vastly out number opponents, it is a rare voir dire transcript where more venirepersons acknowledge support for capital punishment than opposition. People v. Turner, 690 P.2d 669, 699 (Cal. 1984) (Byrd, D.J., concurring and dissenting). Compare Ross v. Oklahoma, 487 U.S. 81, 83-4 (1988) (juror initially indicated he could vote to recommend life if the circumstances were appropriate, but "on further examination by defense counsel, declared that if the jury found petitioner guilty, he would vote to impose death automatically.") The need to search to expose Morgan-excludable jurors is a fact of life in capital litigation. III. Reasons why the Court should permit attorney-conducted voir dire. A. The burden to establish excludable grounds for a potential juror is on the parties, not the court.

The Court should permit attorney-conducted voir dire because the party who objects to the inclusion of a certain veniremember on the jury is the party required to develop and articulate the reasons in support of that objection. See Wainwright v. Witt, 469 U.S. 412, at 423 ("As with any other trial situation where an adversary wishes to exclude a juror because of bias, then, it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.") The Court noted defense counsel's failure to participate in death qualification as indicative of support for, or at least acquiescence in, the trial court's ruling on a juror's impartiality. "In this regard, it is

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noteworthy that in this case, the court was given no reason to think that elaboration was necessary; defense counsel did not . . . attempt rehabilitation." Id. 430-31. The Court itself has no particular interest in substantiating the record for one side or the other. That is not the Court's role. Thus, the Court should defer to the parties whose interests are at stake in conducting these most sensitive areas of voir dire. B. The appearance of impropriety. The Court is at all times required to maintain a position of impartiality, and an appearance thereof, in its role as arbiter of the proceedings before it. The risk that the jury will believe the Court to be supportive of either the government or the defense during a voir dire that seeks to probe the innermost, heartfelt thoughts and emotions of the jurors as to such flashpoint issues as capital punishment or gang violence can destroy, in the jurors' minds, that appearance of impartiality. Imagine a situation in which the parties believe that a juror has not been entirely forthcoming vis-a-vis the imposition of the death penalty. Such a perception may be based on body language, hesitancy in answering, or equivocal pronouncements in response to various questions. If it were perceived that a juror was hiding a staunch bias regarding the death penalty, it would be much more appropriate for the prosecutors or defense counsel to probe the juror's views than for the Court to do so. C. Despite extensive motion practice in this case, the Court simply cannot know enough about the facts, from either the defense or prosecution prospective, to do a thorough job. Lawyers should be permitted to conduct at least some of the voir dire because they are the ones who have been preparing the case for trial and have an intimate knowledge of the facts. The Court is simply not in a position to have or gain sufficient factual knowledge of the facts of this case, its defenses, its mitigation facts or its themes to conduct effective voir dire. The Fifth Circuit has recognized that these deficiencies lead to meaningless voir dire. United States v. Coury, 625 F.2d 704, 707 (5th Cir. 1980): "Knowing

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what specific questions to ask is difficult for the judge, who lacks the same grasp attorneys have of the complexities and nuances of a particular case. (Citation omitted.) This court has previously stressed that voir dire examination not conducted by counsel has little meaning." Rather than trying to assimilate all the facts and circumstances pertinent to voir dire, the Court would better serve the process by listening to the questions from the parties and the answers from the jurors so as to be in position to rule on any objections or motions to strike a juror. D. Jurors defer too much to the Court's position and prestige.

When the judge conducts the voir dire, it usually consists of leading questions which lead prospective jurors to agree unquestioningly. Counsel have countless times heard trial judges ask a prospective juror something to the effect of "you can be fair and impartial, can't you?" to which the obvious appropriate answer is "yes". Few jurors would dare to disagree with such questioning from on high. Studies have repeatedly shown that jurors are acutely aware of even the most subtle cues or indications from the judge. Fearing disapproval, jurors will usually respond to the court's queries in a manner they believe is acceptable to the court without actually considering their own individual, personal and honest responses. Note, Judge's Non-Verbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 Va. L.R. 1266 (1975); see also Broeder, Voir Dire Examinations and Empirical Study, 38 S. Cal. L.R. 503 (1965). The Supreme Court has long recognized this fact: The influence of the trial judge on the jury "is necessary and properly of great weight" and "his lightest word or intimation is received with deference and may prove controlling." Oeurcia v. United States, 289 U.S. 466, 470 (1933) (quoting Starr v. United States, 150 U.S. 614, 626 (1894)). Judicial voir dire inhibits the ability to discover the veniremembers' true feelings. Attorney-conducted voir dire is a more effective tool for eliciting bias than questioning conducted by the Court alone. The hierarchical distance between the

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questioner and the prospective jurors is reduced and jurors will feel less inhibited about offering more candid responses to an attorney. Furthermore, the judge cannot possibly have the same interest in discerning juror bias as does an adversary, and the adversaries may be more sensitive to those juror responses which may need follow-up inquiry. Moreover, the trial judge is less familiar with the evidence and case theories than are the parties. A judge necessarily cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does not know the strength and weakness of each litigant's case. We submit that real justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed. United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977). Attorney-conducted voir dire is the standard practice in most state courts in death penalty cases, and for good reason. Empirical research demonstrates that attorneys are more effective than judges in eliciting candid self-disclosure from potential jurors. Attorney-conducted voir dire minimizes the pressure to conform to set of perceived judicial standards that arise due to questions from the judge. In one study, subjects changed their answers almost twice as much when questioned by a judge as when interviewed by an attorney. Jones, Judge v. Attorney-Conducted Voir Dire, 2 Law and Human Behavior 131 (1987). Thus, "trial courts should be especially sensitive to counsel's requests to supplement the Court's voir dire examination [and] should be sensitive to permitting attorneys to conduct some voir dire." State v. Williams, 550 A.2d at 1189, n.10 (reversing death sentence due to erroneous cause challenge and to overall inadequacy of judge-conducted voir dire). E. ABA Standards. After initially recommending that judges have the option of conducting voir dire without permitting counsel to question jurors personally, the American Bar Association

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reversed its position. It now recommends at participation in voir dire by counsel in every case, not just death penalty cases. American Bar Association, Standards for Criminal Justice (3rd Edition 1996), Trial by Jury, Section 15-2.4 provides: Questioning of jurors should be conducted initially by the judge, and should be sufficient, at a minimum, to determine the jurors' legal qualifications to serve...Following initial questioning by the court, counsel for each side should have the opportunity, under the supervision of the court and subject to reasonable time limits, to question jurors directly, both individually and as a panel. In this case, counsel requests that the Court permit counsel to conduct substantial portions of the voir dire, especially as to the penalty to be imposed, and as to any publicity or racerelated issues. Such participation is vital to securing the defendant's Fifth, Sixth and Eighth Amendment rights to empaneling an impartial jury. IV. Conclusion Attorney participation in conducting voir dire is vital to the fair and efficient empaneling of an impartial jury for a trial of this nature. Attorney-conducted voir dire on such issues as punishment, publicity, race and gang-related violence will facilitate the process in many ways, not the least of which is putting the parties with the greatest stake in the outcome in a position to help determine the outcome. Counsel would request the Court to grant this Motion and permit the attorneys to conduct voir dire on those areas of inquiry identified above. Respectfully submitted this 3rd day of October, 2005. /s/ Michael B. Bernays Michael B. Bernays Attorney for Defendant Eppinger

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CERTIFICATE OF SERVICE I hereby certify that on October 3, 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 3, 2005, I sent a copy of this document by first class mail 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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