Jury Selection – Part 2
The oral motion to waive trial by jury was made primarily due to the complexity of the legal issues that were sure to arise. The defense team thought that legal argument would be better presented and understood by the judge. The motion to waive jury trial was made orally, in chambers, prior to jury selection. The motion had strategic as well as substantive value. Of course, the judge denied the motion because, in order for the waiver to be valid, it must be agreed to by the Government. The case itself was sexy enough that the Government could not waive the jury. Additionally, the case provided the government with the opportunity to argue to the jury about “those foreigners” as despoilers of the United States shores. In hindsight, it was a wise decision on the Government’s part not to waive the jury.
The second tactical decision made regarding the selection of the jury was the request to the court to allot additional time for counsel to examine the panel during voir dire. The Court’s procedure manual allowed each side fifteen (15) minutes to examine the jury panel. Due to the sensitive nature of the charges brought, the complexity of the issues, the scope of the indictment, the number of defendants, as well as the nationality of the defendants, the defense team requested an allotment of an additional one hour to examine the panel. The Court granted the defendants’ request and allowed the government and the defense team one hour each to conduct voir dire after the Court conducted its preliminary questioning. The additional time was helpful especially in light of the fact that the venire panel was quite large, 172 prospects.
The final area which the defense team concentrated on was the actual jury selection. To accomplish its goal, the defense team consulted with a forensic/clinical psychologist to assist in the development of an ideal juror profile and a juror questionnaire. The juror profile would assist the trial team in developing a standard against which peremptory strikes could be made during selection. The juror questionnaire was to be developed to further uncover potential juror bias. The Southern District of Texas, Houston Division, typically uses a “bare bones” juror questionnaire to assist the lawyers in obtaining background facts about each potential juror. With the complexities of this particular environmental crimes case, the defense team felt that the standard juror questionnaire was wholly inadequate. As a result, after consultation with the forensic/clinical psychologist, the defense team submitted a questionnaire which it requested the Court have the prospective jurors fill out and attach to the Court’s standard jury questionnaire. The Court ultimately allowed the use of the defendants’ proposed questionnaire; however, the Court asked the questions from the questionnaire of the panel as a whole during the opening phases of jury selection rather than having them fill it out in advance. While this was not the ideal situation, it did provide additional information not normally available for jury selection.
Not all of the defense team’s tactics were successful. As previously noted, the Court denied the defendants’ oral motion to waive jury trial; however, the Court granted additional time for voir dire and the Court did allow the use of a juror questionnaire. In all, the defense team was pleased with the composition of the jury ultimately selected to hear the case.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii