The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Thursday, October 30, 1997 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 53)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 10:30 a.m., on the 30th day of October,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, and ADAM THURSCHWELL,
Attorneys at Law, 1120 Lincoln Street, Suite 1308, Denver,
Colorado, 80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 10:30 a.m.)
THE COURT: Please be seated.
Good morning.
ALL: Good morning, your Honor.
THE COURT: We're ready to proceed pursuant to the
agreed order regarding peremptory challenges. And you should
have, as I do, the 64 jurors cleared for cause in Panels A
through F.
MR. TIGAR: Yes, your Honor.
THE COURT: And I will expect, then, to have you
exercise these peremptory challenges by references to the panel
seats; and for convenience here, knowing that you may want to
consult among yourselves on each side, you know, I have no
problem with your doing that and simply then standing there
where you are instead of taking the time to walk to the lectern
each time, and so forth.
And our procedure, as agreed, is that we will
alternate the exercise of these challenges one at a time, the
Government going first.
Mr. Tigar?
ARGUMENTS RE PEREMPTORY CHALLENGES
MR. TIGAR: Yes, your Honor. I know the Court has had
the papers on our motion with respect to the Government's
exercise of peremptory challenges under the statute of
Edward I.
THE COURT: Yes.
MR. TIGAR: I think the Government -- the Court has
indicated a disposition to deny the motion, but I wanted to
make sure the record was protected.
THE COURT: Yes. You did file your submission. The
thrust of it is that no peremptory challenges should be granted
to the Government; that the Rule 24(c) is, I guess --
MR. TIGAR: Violates the due process clause, your
Honor, and the Sixth Amendment.
THE COURT: -- unconstitutional.
MR. TIGAR: Yes.
THE COURT: And I've been apprised of your position.
I reject it. The Government will enforce Rule 24(c) and
exercise 20 peremptory challenges and 3 to the alternates, and
we've agreed to the procedure that we'll use 23 out of the 64.
MR. TIGAR: And I wanted to make sure that our
agreement to the proposed order does not constitute a waiver of
our position.
THE COURT: Not at all.
MR. TIGAR: And second, your Honor, we and the
Government have each filed a memorandum concerning Batson, not
I think that either side anticipates that the other side will
exercise challenges in any way that could be subject to
question but simply to state our views on the law.
THE COURT: I have those, too; and I'm going to
follow, if necessary, the three steps in the Puckett case from
the Supreme Court.
MR. TIGAR: Yes, your Honor. And the only
disagreement we have with the Government's submission is we
believe that the Holland rule they cite has been effectively --
rule they site has been effectively overruled by McCollum in
the sense that -- and Powers in the sense that we do have
standing with respect to all of those categories. But I don't
know if that issue is going to arise, your Honor; but I wanted
to alert the Court that our position on standing is as stated
in McCollum and Powers and the Edmondson case.
THE COURT: Well, I'm not going to worry about
standing now. If you stand to exercise a challenge, it may
come up; but, you know, I'm prepared to hear Batson objections
by either side.
MR. TIGAR: Thank you, your Honor.
MR. MACKEY: Your Honor, if I may . . .
THE COURT: Yes.
MR. MACKEY: One final procedural question. And I
don't necessarily expect this will happen; but if for some
reason both parties waive a strike in the same round, it's my
assumption that the process will nonetheless continue; that we
will go on to strike in the succeeding rounds. Just a question
of procedure.
THE COURT: I don't understand the point.
MR. MACKEY: The question is if the Government, for
example, in Round 12 hypothetically would waive its strike in
Round 12, should the defense at that point waive as well in
Round 12 --
THE COURT: I don't expect there to be any waivers.
MR. MACKEY: All right.
THE COURT: I thought that the agreement was that all
23 strikes would be exercised.
MR. MACKEY: I know the defense had taken that
position.
THE COURT: Well, I thought you had as well.
MR. MACKEY: And I expect that we will not, but I
wanted to leave open that possibility as I've examined --
THE COURT: I don't know how you would -- you know, if
you were to waive a round, as you suggest, I don't know how
that would be applied then when we're applying these
peremptories against a panel of 64. So I just don't see how it
works procedurally.
MR. MACKEY: All right.
THE COURT: My understanding of our agreement was that
you -- both sides would exercise all of the peremptories
available both with respect to the -- we would pool these
jurors and not separately do alternate jurors. And in that
fashion -- you see, otherwise, we, I think, would have great
confusion in trying to apply Rule 24 and the separate
challenges for the alternate jurors.
MR. MACKEY: I understand the Court's concern: Who is
Juror No. 64? I understand.
We'll proceed accordingly.
THE COURT: Yeah. All 64 and divide it into these
panels -- I'd expect both sides to exercise 23 challenges
apiece, alternating them.
MR. MACKEY: Thank you, Judge.
THE COURT: Does the defense agree to that procedure?
MR. TIGAR: Yes, indeed, your Honor; and we thought
that under Ross vs. Oklahoma, as construed in the Tenth
Circuit, we are required to exercise all 23 in order to
preserve our objections to challenges for cause. That's why we
sought the procedure, and we will exercise all 23.
THE COURT: All right. Well, now, we're in agreement.
MR. MACKEY: Thank you, your Honor.
THE COURT: We'll start exercising them, with the
Government first.
PEREMPTORY CHALLENGES AND RULINGS
MR. MACKEY: Your Honor, the United States would
strike Juror E6.
THE COURT: That's panel E and Seat 6.
As I said, Mr. Tigar, you don't have to --
MR. TIGAR: Batson challenge, your Honor. Roman
Catholic juror identified as such in pleadings filed by the
Government arguing with respect to the significance of those
beliefs in the mind of the juror. Brief filed in that
connection by the Government identifying that on October 24.
THE COURT: So, what is your point; that this is a
religious discrimination?
MR. TIGAR: Yes, your Honor. The first question is
does Batson extend to religious discrimination.
THE COURT: Right.
MR. TIGAR: With respect to this type. We recognize
that presents a legal issue under Prong 1; and if it does, then
would -- if your Honor accepts that view, then the burden would
shift under Phase 2.
THE COURT: All right. Is there a response?
MR. CONNELLY: Your Honor, assuming it applies to
religion, this was not a religion-based strike. It was based
on the juror's views of the death penalty, which came very
close to disqualifying that juror for cause. And it was not
done for any prohibited reason. It was done solely based on
her ability to fairly decide the death penalty issues in this
case impartially. She approached a cause challenge. We
thought she was disqualified for cause, but clearly there are
neutral reasons tied to this case for striking her.
THE COURT: Response.
MR. TIGAR: Briefly, your Honor, and if I could just
say this now, it may save some time later.
THE COURT: Very well.
MR. TIGAR: It is our position that the purportedly
neutral explanation in fact raises an additional Batson-based
challenge for cause. We would contend there is a Batson
category of jurors with scruples with respect to the death
penalty who are not Witherspoon excludable; that is to say that
that constellation of moral and religious beliefs constitutes a
Batson-protected category.
We recognize that the case law is sparse on that
issue, but that is our position.
THE COURT: Two rulings, then. First on the general
legal underpinnings of this dispute, I am going to assume that
religion is a Batson category, along with race and gender.
Some of the others that have already been recognized. So I
would entertain the objection on that ground.
With respect to the second point raised, scruples re
the penalty, I don't believe that's a definable category.
Obviously, that's a matter that we discussed when there were
motions to excuse people for their inability to serve under the
statutory criteria and under the required criteria applied by
the Supreme Court, Witt, Witherspoon, and so forth.
As I explained at that time, when we get to these
issues about particular jurors and the responses of the
particular jurors, as I said before, there is no talismanic
question here. It has to be a matter of consideration of all
of the juror's answers in context.
And with respect to this particular juror, it's clear
to me from my notes regarding uncertainty about the ability to
follow the law with respect to punishment, it's -- and some
emotional response from the juror, I think that the
Government's exercising a peremptory challenge here is
plausible, understandable; and the Batson challenge to the
peremptory challenge is rejected.
So now, the defendant's first peremptory.
MR. TIGAR: Defendant's first peremptory, your Honor:
B5.
THE COURT: B, as in boy?
MR. TIGAR: B as in Bravo, your Honor, 5.
THE COURT: B5. Government?
MR. MACKEY: Thank you, your Honor. We would next
strike Panelist B12.
THE COURT: B12.
MR. TIGAR: We renew, your Honor, with respect to this
juror, the scruples challenge. We understand it's previously
rejected by the Court; but to protect the record, we raise it.
THE COURT: All right. Well, I'm rejecting the
scruples category, I guess we'll refer to it for ease of the
record here, and accept that peremptory challenge. B12.
Defendant's next?
MR. TIGAR: Defendant challenges B, Bravo, 1.
THE COURT: B1.
Government?
MR. MACKEY: Yes, your Honor. Panelist F2.
THE COURT: F2.
MR. TIGAR: Defense challenges Charlie 4. C4.
THE COURT: C4.
I won't invite you each time. I'll just wait till
you're ready, and you'll alternate and go ahead when you're
ready.
MR. MACKEY: Thank you, your Honor.
The Government would next strike E5.
THE COURT: E5.
MR. TIGAR: Defense strikes Charlie 12, C12.
THE COURT: C12.
MR. MACKEY: Next, your Honor, for the Government.
THE COURT: Yes.
MR. MACKEY: A7.
THE COURT: A7.
MR. TIGAR: Defense strikes Delta 2, D2.
THE COURT: D2.
MR. MACKEY: If your Honor please, A5.
THE COURT: A5.
MR. TIGAR: Defense strikes A6, Alpha 6.
THE COURT: A6.
MR. MACKEY: Your Honor, A9.
THE COURT: A9.
MR. TIGAR: Defense strikes C9, Charlie 9.
THE COURT: C9.
MR. MACKEY: Same panel, your Honor, C5.
THE COURT: C5.
MR. TIGAR: Defense strikes F, as in Foxtrot, 3. F3.
THE COURT: F3.
MR. MACKEY: Your Honor, for the Government, E2.
THE COURT: E2.
MR. TIGAR: Defense strikes A10, Alpha 10.
THE COURT: A10.
MR. MACKEY: Your Honor, the Government's tenth strike
is as to Panelist D4.
THE COURT: D, as in Day?
MR. MACKEY: Yes, your Honor.
THE COURT: D4.
MR. TIGAR: Defense D as in Delta, 5. D5.
THE COURT: D5.
MR. MACKEY: Your Honor, E1.
THE COURT: E1.
MR. TIGAR: Defense challenges C2, Charlie 2.
THE COURT: C2.
MR. MACKEY: For the Government, your Honor, C6.
THE COURT: C6.
MR. TIGAR: Defense strikes Bravo 10, B10.
THE COURT: B10.
MR. MACKEY: Your Honor, E8.
THE COURT: E8.
MR. TIGAR: Defense challenges Bravo 9. B9.
THE COURT: B9.
MR. MACKEY: Your Honor, for the Government, D3.
THE COURT: D3.
MR. TIGAR: Batson, your Honor, African-American.
THE COURT: D3?
All right. Government response?
MR. MACKEY: Your Honor, we assume based on the brief
that we filed this morning that for purposes of this proceeding
the Court will consider the motion as having made the prima
facie case of the strike being generated for racially
inappropriate grounds. We'll respond with that assumption.
This is our first opportunity to make as a matter of
record some of the statistical information that is called for
by virtue of the cases referred to in our brief.
THE COURT: All right.
MR. MACKEY: And I want to report to the Court based
on our evaluation of the venire that Caucasians make up
87.5 percent of the venire, 64; African-Americans make up
7.8 percent, your Honor, and Hispanics 4.7. And that may
become a guiding principle for the course of the challenges.
THE COURT: When you say "the venire" --
MR. MACKEY: The panel of 64.
THE COURT: Of the 64?
MR. MACKEY: Yes, your Honor. One of the factors that
is referred to in the Hurd case and others is the number of the
racial groups in the panel -- that's the reason for the making
of this particular record -- and also the nature of the crime
and the race of the defendant and the victim. And I think it's
important in evaluation of this challenge that the Court know
the statistical and sex makeup of the victims of the Oklahoma
City bombing.
I would report to the Court that of the 168 persons
who died on April 19, 1995, 126 were Caucasian, 47 men, 69
women and 10 children. There were 34 African-American victims
of the bombing consisting of 9 men, 17 women, and 8 children.
There were 5 Hispanics who died in the Oklahoma City bombing,
including 4 adult men and 1 child.
There was 1 male Asian, 1 male -- excuse me -- female
Asian, for a total of 2; and finally, 1 Native American. That
was the racial and sex makeup of the victims of the Oklahoma
City bombing.
I mention that largely, your Honor, to underscore what
we judge to be a principle of the Government's strike in this
situation; and that is, this was an indiscriminate crime. And
for that reason, the Government would see no racial motivation
in the selection of a jury.
Your Honor, specifically as to Juror 176, I would make
a matter of record the race-neutral grounds.
THE COURT: All right.
MR. MACKEY: First of all, your Honor, this particular
juror considered herself as having been wrongly put in jail on
a particular occasion. She recited in her questionnaire and
her testimony an incident involving herself where there was a
domestic dispute, her husband was not arrested and she was, and
she judged it to be unfair.
In questioning of this particular juror, your Honor,
she answered Mr. Tigar by pointing out that her own situation,
the incident that I referred to, was a fact where she thought
her husband "had told lots of lies and stuff," and that might
influence her view of accomplice testimony. And that's a
matter of record at transcript 3462.
Our second ground as to this juror, your Honor,
relates to her death penalty answers, which at best could be
described as unclear. This particular juror said, "I don't
know," when asked whether the death penalty should ever be
imposed and on what kinds of cases it should be imposed, those
answers at Questions 124B and D.
This particular juror told the Court, "I've thought
about it," meaning the death penalty, "and I don't know how I
feel about the death penalty." She went on to say at 3532 that
she was very uncertain about the issue.
This juror gave several answers suggesting that the
most important consideration for death penalty is whether the
defendant was a repeat offender. More often than not, she used
the description of a person who continually murdered others as
being a kind of person, a kind of case, that would justify the
death penalty.
When she was asked the question about whether a single
criminal act that killed a lot of people, a question asked by
the defense, such as bombing an airplane, her answer was, "I
don't know."
Thirdly, your Honor, as to grounds for this particular
juror and the basis for our motion is her demeanor. This is a
juror who appeared twice, both at the end of the day and the
following morning; and we would note that on both occasions,
even giving her the benefit of the doubt of becoming acclimated
to the situation, she exhibited demeanor in our judgment that
did not seem appropriate for service in the matter at hand.
Those are the bases for that motion to strike.
THE COURT: Thank you.
Do you have response, Mr. Tigar?
MR. TIGAR: Yes, your Honor. Her -- the juror's
answers with respect to the death penalty were ones which if
anything would give the defendants some concern; but at the end
of the day, she said that she could follow the Court's
instructions no matter how serious the crime. Those are the
questions to which counsel was referring.
With respect to the incident with her husband, your
Honor, that was a mixed-race incident; and if anything, that
incident simply magnifies the Batson basis for our challenge.
With respect to demeanor, your Honor saw the juror;
and we certainly saw nothing inappropriate in what she was --
in her responses.
I've looked at the transcript, and her answers were
straightforward.
THE COURT: Do you have any --
MR. TIGAR: I'm sorry, your Honor.
THE COURT: Do you have any dispute about the
statistical information which Mr. Mackey provided here?
MR. TIGAR: No, your Honor, I don't. But in our
respectful submission the fact that this crime, this terrible
event, took the lives of a large number of people of many
different races is irrelevant to the Batson determination here.
THE COURT: Well, I'm speaking more to the venire, the
64.
MR. TIGAR: Oh, I see, with respect to the venire.
THE COURT: Yeah.
MR. TIGAR: No, your Honor, I haven't done the count;
but that sounds about right to us. And, of course, that
doesn't become relevant until and unless we begin to see a
pattern. If we do, then we might have some additional ground
upon which to go back and consider these things, your Honor.
Our challenge as of this time isn't based upon any
pattern that has so far appeared. We've only gone through a
couple of these.
THE COURT: All right. Well, you know, in line with
the teachings of the Supreme Court in the Puckett case, the
question for the trial judge is whether the first proponent of
the strike or challenge has come forward with a race-neutral
explanation -- and the Government has -- and then whether the
objector or opponent of the strike has proved purposeful
discrimination. The answer is no on this juror.
And accordingly, the Batson objection to the
peremptory challenge is rejected. D3 -- the challenge to D3 --
peremptory challenge is accepted.
Defense next.
MR. TIGAR: Defense challenges D9, your Honor, Delta
9.
THE COURT: D9.
MR. MACKEY: Your Honor, Alpha, A11.
THE COURT: A11.
MR. TIGAR: Defense challenges D7, Delta 7.
THE COURT: D7.
MR. MACKEY: If your Honor please, C1.
THE COURT: C1.
MR. TIGAR: Defense challenges A8, Alpha 8.
THE COURT: A8.
MR. MACKEY: Thank you, your Honor. B4.
THE COURT: B4.
MR. TIGAR: Defense challenges C7, Charlie 7.
THE COURT: C7.
MR. MACKEY: Your Honor, C10.
THE COURT: C10.
MR. TIGAR: Defense challenges C8, Charlie 8.
THE COURT: C8.
MR. MACKEY: Your Honor, for the record, on behalf of
the Government, we would make a Batson challenge. I note for
the record that defendant strikes D5 and C8 are Hispanics.
THE COURT: D5 -- well, all right. You're making the
objection on C8.
MR. MACKEY: Based on the pattern, your Honor, since
Hispanics only constitute -- there are only three in the entire
64.
THE COURT: I just want -- the record is that the
challenge is to -- or the objection is to the challenge on C8.
MR. MACKEY: Yes, your Honor.
THE COURT: And included in it is the pattern
reflecting D5.
MR. MACKEY: Yes, your Honor.
THE COURT: Mr. -- let me just take a moment to look
at C8.
All right. Mr. Tigar?
MR. TIGAR: Yes, your Honor. Juror C8, according to
my notes, was an in-home day-care provider and first learned of
the bombing from one of the parents who came to pick up their
child at the day-care center, and they related that there was a
day-care center in the federal building, your Honor. That is
the -- an extremely close connection to day-care provision; and
based on our prediction that the first witnesses -- or among
the first witnesses in this case will be the people who were
involved in that process in Oklahoma City, as well as the
opening statement which we reviewed from the last case, which
focused on that, if the Court will recall, for its first X
number of minutes, it was our prediction that this juror's
response to that testimony would be such as to influence the
jurors' judgment in an innocence phase of the trial and
particularly should we get to a penalty phase.
In addition, your Honor, we would note with respect to
this juror that although her own ethnic background is Hispanic,
the -- this is a neutral challenge in the sense that she is
married to a non-Hispanic and thus doesn't have the degree of
ethnic identification that would sustain a McCollum challenge.
THE COURT: Well, she also marked two races on page --
she marked for herself two races.
MR. TIGAR: Yes, your Honor.
THE COURT: Hispanic/Latino, White/Caucasian.
MR. TIGAR: Yes, your Honor. And with respect to D5,
since the Government has talked about a pattern, this is
somebody who returned her first questionnaire, wrote on it that
Terry Nichols was guilty, crossed out "guilty." And I don't
remember if she wrote "involved" or "responsible," but we asked
her about that. That is an extremely strong expression of
opinion. And in our view, you know, she wrote -- "Is there any
other reason that would prevent you from serving on the jury?"
She wrote "yes" and then provided that explanation, your Honor.
That certainly puts her among the top four or five in
terms of the strength of expression of opinion.
THE COURT: All right. Do you have any rejoinder to
that?
MS. WILKINSON: Just briefly, your Honor.
THE COURT: Very well, Ms. Wilkinson.
MS. WILKINSON: I believe that Mr. Tigar is citing to
transcript page 2888.
THE COURT: On which one now?
MS. WILKINSON: Of the juror that is the subject --
THE COURT: C8?
MS. WILKINSON: C8. Yes. Sorry. We have so many
numbers, it's --
THE COURT: And the page again?
MS. WILKINSON: Page 2888. It began on 2887. I
believe if this is the only reason that defense counsel is
challenging this juror, she responded that she had no
discussion with the parent about that fact, meaning that there
was a day-care center in the building. And she just said the
person left right away and then she turned on the television.
I did not hear Mr. Tigar give any other bases for challenging
this juror.
Based upon that and the pattern of challenging the
prior juror, we would say this would qualify under Batson.
THE COURT: All right.
Well, I'm rejecting the Batson objection. You know,
we have again all these appellate opinions about this process,
but certainly intuitive and counterintuitive notions are still
a part of the process, I think, so long as there can be a
plausible explanation for it. And certainly advocates on each
side can have different intuitive feelings about responses. So
I'm satisfied that this is not a discriminatorily motivated
exercise of a peremptory challenge, so the Batson objection is
rejected.
I believe we're ready for No. 19.
MR. MACKEY: Government's 19, your Honor, is against
Panelist B7.
THE COURT: B7?
MR. MACKEY: Yes, your Honor.
MR. TIGAR: Defense challenges D10, Delta 10.
THE COURT: D10.
MR. MACKEY: Government's 20, your Honor, is against
Panelist F1.
THE COURT: F1.
MR. TIGAR: Batson, your Honor, African-American.
THE COURT: Okay.
All right, Mr. Mackey.
MR. MACKEY: Your Honor, as to this juror, F1, the
basis for the Government's strike is as to her views on the
death penalty. Her questionnaire began with answers, such as,
"I don't really believe in the death penalty. I don't know
what it solves, putting someone to death. I could not sentence
a person to death."
The voir dire, as the Court may recall, was barely
stronger; and I would highlight a number of her answers, your
Honor. At page 5490, she said, "I'd probably have nightmares
if I did something like that," referring to voting for the
death penalty; on the same page, said, repeating the
questionnaire, "I don't see any purpose in putting a person to
death."
Further, at 5500, "I just don't think I could sentence
a person to death. I don't know. I don't know. I still feel
bad for Gary Davis having been executed. I feel sorry for
him."
Your Honor, our view is given her very strong
anti-death-penalty views, she's too much of a risk; and
therefore the Government would move to strike F1.
THE COURT: Mr. Tigar?
MR. TIGAR: If your Honor please, it's our position
that that explanation is not a neutral explanation within the
meaning of Batson and its progeny; that is to say that to
attempt to excuse a race-based peremptory by citation of views
that are well within the category of persons eligible to serve
on juries in capital cases and views that are protected by the
First Amendment does not as a matter of law cure a Batson
challenge based on race. And therefore, your Honor, we'd
respectfully submit that the explanation should be rejected.
THE COURT: Well, I'm satisfied that this was a
race-neutral explanation and that there is no evidence of
purposeful racial discrimination with respect to this person.
Now, of course, this gets over into the argument made
by the defense with respect to scruples concerning the penalty.
MR. TIGAR: Yes, your Honor.
THE COURT: And I rejected that as a category, but I
believe the challenge is a valid one and the objection to it is
denied. F1 -- F1 is excused.
MR. TIGAR: Defense challenges, your Honor, B8, Bravo
8.
THE COURT: B8.
MR. MACKEY: Thank you, your Honor. Government would
strike C3.
THE COURT: C3.
MR. TIGAR: Defense challenges D8, Delta 8.
THE COURT: D8.
MR. MACKEY: Thank you, your Honor.
Government's next strike is against Panelist E12.
THE COURT: E12.
Mr. Tigar?
MR. TIGAR: Defense challenges D1, Delta 1.
THE COURT: D1.
MR. MACKEY: Your Honor, for the Government, E9.
THE COURT: E9.
MR. TIGAR: Batson, your Honor, African-American.
THE COURT: Okay.
All right. Your response, Mr. Mackey?
MR. MACKEY: Your Honor, the race-neutral grounds on
which the Government is relying as to E9 are as follows. And
while I will mention to the Court I was intrigued by the
possibilities, careful evaluation of all of the factors in mind
here lead to this motion to strike E9.
First of all, your Honor, it begins with the
questionnaire; and I do acknowledge and accept great distance
was made in the course of the oral voir dire from some of the
questions on the questionnaire to the attitude exhibited to
your Honor. We nonetheless cannot shake some of the very stark
and difficult language that he chose to recite in his
questionnaire. And that's referred to in question -- or
answers on 164 and 165. A very strong and clear message was
sent on paper, your Honor, that this was not a process that he
wanted to participate in or would be serious about if, in fact,
selected.
We remained concerned, your Honor, both from the basis
of the questionnaire as well as his answers as to whether he
would stay focused on detailed evidence that may develop and
unfold over many weeks or months of testimony.
The second ground, your Honor, is a life experience
from this juror that we have to apply to the evidence that we
expect and the issues that may well arise in the course of this
trial, and that is his past that's reflected in answers to
Questions 103 and 105 and 108, questions that the Court
reviewed with him. He used and affirmed the notion of a rush
to judgment in connection with his own past experiences.
That's the second ground, your Honor.
The third ground, your Honor, has to do with his
particular status in the community and the risk that, given
that status, he may well prove to be a disruption to the rest
of the members of the jury.
And finally, your Honor, as to the death penalty, we
would note that in his answer on Question 124B, he said that he
would give the death penalty if the conviction involved little
circumstantial evidence. Those collection of reasons, your
Honor, serve as grounds for our motion.
THE COURT: Response?
MR. TIGAR: With respect to the questionnaire, your
Honor, that is not, in our respectful submission, a neutral
basis. Many people -- a number of people -- several at
least -- were impatient with the questionnaire. I think that
in questioning by your Honor, the juror proved himself to be
someone who was well aware of his rights and in the process
became extremely well aware of his responsibilities. His
unequivocal statement at the end about his willingness to
participate and the manner in which he would do so, it seems to
us, removes any questionnaire-based concerns about this juror.
With respect to the life experience, your Honor, the
juror had the feeling that that life experience related in some
way to the juror's race and celebrity status, if the Court will
recall. To the extent it deals with race, it is, I think,
common knowledge that many people who -- many African-Americans
believe that law enforcement treats them in a different way
than it treats others. Thus, to say that somebody had a bad
experience with law enforcement when a Batson challenge is
based on African-American status really is to let one set of
circumstances, i.e. a feeling about the justice system, do
proxy for another.
With respect to obstruction, the obstruction challenge
appears to be based on the fact that the juror is somebody who
is well known to a large number of people. That, again, your
Honor, does not seem to be a valid ground of distinction.
And again, with respect to focus, the juror made clear
that he understands these things, he's somebody in business for
himself, he's used to making important decisions and willing to
participate in the process fully.
So we respectfully submit that those are not proper
answers to a Batson challenge.
THE COURT: All right. Well, I'm adhering to the
caution given by the Supreme Court in Puckett, of course, that
it is not for the Court to evaluate and agree or disagree with
the grounds stated so long as they are neutral and do not
indicate purposeful racial discrimination. I'm satisfied with
the Government's explanation that race is not a factor in this
decision; and accordingly, the Batson objection is rejected.
The challenge is granted, and E9 is excused.
MR. TIGAR: Your Honor, defense challenges E7. Echo
7.
THE COURT: E7.
All right. That completes the peremptory challenges,
and I want you to remain after we recess to double-check these
numbers with the clerk so that we're very clear that there
hasn't been a transposition of number or something -- so that
we're clear.
Now, what I intend to do, I have directed that the
entire venire be brought to the courthouse; and they will be.
And my purpose here now is to meet with them in the adjacent
courtroom, which will not be a public meeting. And I intend to
separate out the persons who have been excused through the
exercise of these peremptory challenges, advise them of that,
thank them for their participation in the process, and excuse
them. And they will then leave the courthouse.
We'll then proceed with our 18, and we will convene
here; and one at a time I will do a brief additional voir dire
with respect to each one of them. And then after we have our
jurors and alternate jurors selected, I intend to give them
instructions, both -- cautionary instructions, of course. We
won't swear them at this time. I'll reserve the administering
of the oath until Monday morning. But I do intend to give them
not only cautionary instructions but also the preliminary
instructions about the trial process so that they will be
informed of that and may save us some time Monday morning so
that we can immediately after the administering of the oath
proceed with opening statements.
Any objection to that proposal?
MR. MACKEY: None, your Honor.
MR. TIGAR: No, your Honor. I assume that the Court
will be keeping in reserve the jurors --
THE COURT: Oh, yes. I have the additional persons
who have been qualified available in the event that in the voir
dire there is a determination that somebody now needs to be
excused for cause because of whatever happens in the voir dire.
Yes. And then if it's necessary to replace them, we'll use
that process and then determine what number of peremptory
challenges additional should be granted.
So I think that if we recess till 1:15 --
Mr. Manspeaker, does that seem --
MR. MANSPEAKER: I believe that will be sufficient.
THE COURT: We'll recess till 1:15, anticipating by
that time we'll be ready for this final voir dire.
Court is in recess.
(Recess at 12:42 p.m.)
INDEX
Item Page
Arguments re Peremptory Challenges
Peremptory Challenges and Rulings
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 30th day of October, 1997.
_______________________________
Paul Zuckerman
