5.Peremptory Challenge Procedure and Jury-Selection Preparation
104 linesTHE COURT: Okay. I thought we'd start -- Jim McAlear's here -- and talk a little bit just about the mechanics of the exercise peremptories. Let me just say I'm still reading materials about motions to remove from the qualified list people. I expect to have that first thing in the morning for you. There are still some transcripts I want to read. So I think you'll know first thing in the morning, so you may have to plan accordingly, but I'm sure you will.
So I've given it a good bit of thought, I think, and I'm inclined with what the government has suggested as a method of approaching the entire panel of, in the first instance, 52 and then 12. And my principal reason for that is I think it maximizes for both sides the utility of the peremptory challenges. It makes it more likely that more peremptories will be used than if we proceeded in the other way. And I think that's consistent with what I think is the clear purpose of the extra peremptories in the rule for death cases, that the parties have greater ability to excuse people by reason of peremptory. So I think that's what we'll do. Anybody in the panel is open to the strikes. And I think the suggestion of going two by two is fine.
I guess what I haven't resolved is how physically we do that. It's not -- it's literally not necessary to have the jurors here in the courtroom to do that. In another case, an ordinary case, we would be doing it at sidebar so neither the jurors nor the public would know which side was responsible for which strikes, and I think that's important to maintain. So it is possible to do it entirely on paper, I guess.
I do have some sense that it should be a public proceeding, the public part, but not necessarily that the information should be public. In other words, it could be observed being done without -- but I'm not sure how to do that. So I invite any -- since it was the government's idea, maybe they should have some ideas about this.
MR. MELLIN: Your Honor, I guess if I can comment on that, the one way that I've seen this handled is that each side is exercising their strikes. The Court looks at the two and two. We submit those up to the Court, the Court looks at that, records the information, it comes back again to us to again exercise two and two, that information goes to the Court. At no time, though, is the Court excusing Juror 22 and 48 at that point in time; it's only at the end that the Court would then excuse the 40 jurors that had been stricken.
THE COURT: So on that, you'd hand them up and I'd review them for my own purposes but not announce them. Is that it?
MR. MELLIN: Correct.
THE COURT: And then they would all be announced en masse at the end: The following 40 jurors are excused?
MR. MELLIN: Yes.
MR. BRUCK: Sounds fine.
THE COURT: Are the bodies in the courtroom?
MR. MELLIN: I would suggest the bodies be in the courtroom just so we all have a chance to look at the jurors once again before we do this process.
THE COURT: Okay.
MR. MELLIN: Typically --
THE COURT: We might use the box but there are different ways of doing it. The easiest way would simply to be go in sequence and put the first 18 in even though that would not actually have any alternates there. That would be the difference from reality. In other words, they would all be part of the 52 rather than -- the first 52 rather than the second 12.
MR. BRUCK: Well, of course, with back-striking it's quite arbitrary who's in the box and who's in the audience.
THE COURT: Right. It takes up fewer seats in the audience so more people could be here. That's one thing.
MS. CLARKE: Judge, if you put them all in the audience and the parties sit on this side of the table, they can see the jurors and you're not straining around to figure out who's there. If you need some room for the public, they could enjoy the jury box.
THE COURT: I doubt we'd do that, but -- well, we have 74, I think, right? That's what we hope will show up.
JAMES MCALEAR: Yes, your Honor.
(Laughter.)
THE COURT: That reminds me. I should tell you that there is one that -- late last week a juror remembered a March vacation that began today, and we told her to go.
MS. CLARKE: And who is that?
THE COURT: Do you remember the number offhand?
JAMES MCALEAR: Yes. It's Juror No. 60.
THE COURT: Yes. Juror No. 60. Okay. So she's flying south someplace, I imagine.
On that score, one juror was postponed for a similar reason and we never actually got to him by the time we suspended. So that's Juror No. 647 who was effectively skipped over in the sequence. So if there's any problem with that, we can address it. If the parties have no problem with the fact that he would be skipped in the sequence and never reached.
(Counsel confer off the record.)
MS. CLARKE: Did the Court plan on voir diring him?
THE COURT: That's an option. We can have him come in tomorrow morning and do that. And I suppose if we went that course, then we could insert him in his sequence.
(Counsel confer off the record.)
THE COURT: If you want, I have his questionnaire here, if anyone wants to look at it.
MS. CLARKE: That would be great. May I approach?
THE COURT: Sure. Paul?
MR. MELLIN: May I look on, your Honor?
THE COURT: Yes, of course. Of course.
(Counsel confer off the record.)
MR. BRUCK: We're content to just dismiss the juror.
THE COURT: Yeah, I would just note he would be Number 71 in our sequence. So it might be entirely moot, it might not, but he would be up there.
MR. MELLIN: I agree, your Honor.
THE COURT: So both parties are content if we just skip over him, treat him as effectively excused?
MR. MELLIN: Yes.
MR. BRUCK: Yes.
THE COURT: Okay. He's still -- he's still on the hook for his nightly phone call, so we'll release him.
So we'll do as we discussed last week, I think 52 for the jury proper and then the next -- so the question -- I don't know whether this will arise or not, but if it were to be the case that the total peremptories exercised actually were less than 20 per side, we would slide the 12 down so that they would be -- they would match in sequence. In other words, if instead of 40 being excused only 38 were, then it would have been -- 39 and 40 would become 1 and 2, basically, okay? And a similar adjustment at the other end.
MS. CLARKE: The alternate pool would begin where --
THE COURT: The alternate pool would drop down to where the jury pool ended if you didn't use --
MR. BRUCK: Drop down or move up?
MS. CLARKE: It would move up, essentially.
(Laughter.)
MS. CLARKE: Try not to confuse us.
MR. BRUCK: Do you mean no matter what the alternate pool will begin at 53, or do you mean that it will slide up so that the first -- the alternate selection -- if two peremptories went unused, then we would start at 51 with the alternates? Is that what the Court --
MS. CLARKE: Yes, that's what I hear.
MR. BRUCK: -- meant to say?
THE COURT: If at the end of the jury proper selection, instead of 52 jurors having been addressed, 12 remaining, 40 excused, only 50 had been, then the first alternate -- the alternate panel of 12 would begin at 51.
MR. BRUCK: Gotcha. Okay.
THE COURT: I don't know whether that's up or down.
(Laughter.)
THE COURT: All right.
MS. CLARKE: Judge, if I might on the question of the Court's rulings on the strikes that are pending, if the Court makes a decision tonight late, is there some way to let us know or do you think it won't be made until we're in the courtroom?
THE COURT: I haven't thought that through. I don't know.
MS. CLARKE: A tug on your left ear would mean granted.
THE COURT: Okay. When the jury has been selected, we have 18 people, they will get a little orientation now that they're really focused from Jim. That's customary. It will include the details about how their transportation will be arranged and what their days will be like, all very practical kinds of things. We've talked about that -- I'm not sure if we've talked recently about it, but I met with the marshals last week and things are in progress to have them assemble offsite, come into the building through the loading dock, basically, just so they can all come in at once. They'll come into the back of the house; they won't have to be exposed to victims, witnesses, participants and so on and so forth. They will have their lunches here.
It's acceptable to the marshals, and I have -- it was my suggestion that they be allowed the use of their electronic equipment during the lunch hour just for their convenience. They will, of course, receive constant and strong reminders of how to use it or not use it, but I thought it would just relieve a little bit of the tension for them during the day if they had an opportunity at lunch to check in at the office or at home or whatever they might need to do.
After Jim is finished with that I would like to meet informally with the jurors just to give them a bit of a pep talk. And I would prefer to do it by myself just for the environment. So if the parties would not object to that, I would like consent to do that. If you want, we could put it on the record. I would rather, again, be informal about it. I just want to encourage them now that they're really focused that it's going to be them, that we expect the highest duty from them, so on, that kind of thing.
MR. WEINREB: We have no objection, your Honor.
MR. BRUCK: This was on the record but --
THE COURT: I was hoping to do it off the record but -- just because it made it less formal for them, but if they see a reporter sitting there...
MR. BRUCK: I understand the Court's preference, but under the circumstances, I think we have to --
THE COURT: Okay. All right. We'll hide her behind a screen.
(Laughter.)
THE COURT: It won't be long. It's just kind of a -- partly courtesy, I think, and partly a personal touch kind of thing, so.
Okay. Are there any other juror-related --
MS. CLARKE: There are, your Honor. We have filed a motion to strike the panel.
THE COURT: Oh, yeah. And so I was going to ask the government whether it intends to formally oppose that or not.
MR. WEINREB: Your Honor, the government opposes the motion. We didn't plan on filing a written response unless the Court would like one, but we would incorporate by reference the responses that we made during the course of the voir dire and in the filings that were made in the Court of Appeals in connection with this case, if that's acceptable to the Court.
THE COURT: I don't have all -- well, maybe I do. Maybe I have them and I don't have them.
MR. WEINREB: They were served on the Court as a part of the proceedings in the two mandamus --
THE COURT: Are they on the docket?
MR. WEINREB: They're on the docket in the Court of Appeals.
THE COURT: Right. But here?
MR. WEINREB: They're not on the docket here. But I don't know that the docket in the Court of Appeals isn't part of the docket in this case.
THE COURT: Okay. All right. So I'll treat that as a statement that the record is complete as to that motion and I can proceed to decide.
MR. WEINREB: Yes. If the Court has any question about whether those -- our filings in the Court of Appeals --
THE COURT: We can get them from the Court of Appeals' docket.
MR. WEINREB: Or we could just file a one-page opposition and fashion it --
THE COURT: I don't think that will be necessary.
MS. CLARKE: Your Honor, we also have a challenge to the jury panel, the plan and the selection of jurors in the district and how it played out and the randomness issue. We filed that motion a week ago maybe.
THE COURT: I thought that's the one you were just talking about.
MS. CLARKE: No, we filed a motion to strike the panel based on what we've ended up with, and we also filed a motion --
THE COURT: Oh, I guess I haven't seen that one. When was that filed?
MR. FICK: The motion to strike the panel was filed under seal on Friday. But previously, I'm not sure exactly which day of the week it was filed, there was a public motion filed under the statute and the jury plan. That's on the public docket.
THE COURT: That's the one I'm aware of.
THE COURT: I wasn't aware of the second. I'll find it. I was actually asking the government about the first.
MR. WEINREB: Oh, I see. Well, with respect to the one that was filed under seal on Friday, we haven't had any time to respond. That's why we said that we oppose it, but we're not planning on filing a written response unless the Court needs one other than what we just said.
With respect to the motion based on the jury plan, we had prepared a written response which we will try to get filed tomorrow.
THE COURT: Okay. As soon as possible. Both motions have to be resolved before we swear the jury.
MS. PELLEGRINI: Tonight?
MR. WEINREB: Well --
MS. PELLEGRINI: I can't remember whether theirs was filed under seal.
MS. CLARKE: Friday's was under seal and served on you guys.
THE COURT: The other one was in the public.
MR. WEINREB: If the Court would give us permission, we'll file it electronically tonight. It may not be before six o'clock, which is the normal filing deadline.
THE COURT: That's all right.
MS. CLARKE: And one final matter with regard to the jury and jury selection in this district, your Honor. We're going to file this afternoon our fourth motion for change of venue. It's largely a record preservation and gathering the various parts of the record together before this Court but we wanted to give you the heads-up that that will be filed this afternoon. The Court can always change its mind but we thought that it would be appropriate for the record to get it in.
THE COURT: I think the record is rather clear.
MS. CLARKE: Well, the record's rather clear that we continue to lose the motion but we want to make sure that there is no question of waiver --
THE COURT: The objection is lodged, but do whatever you have to do.
MS. CLARKE: Thank you.
MR. CHAKRAVARTY: Your Honor, one other jury issue just for my clarification. Maybe everybody else is clear on it. But is it going to be the Court's practice after the peremptories that both the jury as well as the alternates will be selected by the lowest juror number first, essentially, for each category? So it will be filling -- I just want to make sure that that process --
THE COURT: Yes. Yes.
Okay. If that's all on the jury -- Jim, do you have anything yourself?
JAMES MCALEAR: I do not, your Honor.