Opinion
13cr00368 (DLC)
01-28-2016
UNITED STATES OF AMERICA, v. ARTHUR BUDOVSKY, Defendant.
ORDER
:
On January 26, 2016, the Court issued an order containing a proposed voir dire question concerning Budovsky's sexual orientation. The background to this issue is as follows. The parties' joint proposed voir dire questions included the following. "In this case you may hear evidence about the sexual orientation of some individuals. Do you have any bias, prejudice, or other feelings about this subject that might make it difficult for you to render a fair and impartial verdict?"
At the final pretrial conference on January 15, 2016, the Court inquired about the question and learned that the Government intended to offer evidence that the defendant used a boyfriend as a nominee on bank accounts to conceal his ownership of Liberty Reserve. The nominee will not be a trial witness, but the Government contends that it might be important to show that a romantic relationship existed between the defendant and the individual. The Court expressed skepticism that the jury would be prejudiced by learning that the defendant is gay, but that the issue would be addressed in the voir dire to the extent that the defendant harbored fears on that score. Because the defense indicated at the end of the conference that it opposed the Government offering evidence of the defendant's sexual orientation, the Court gave the parties a week to discuss the issue, attempt to resolve it, and advise the Court whether a question regarding the issue needed to be included in the voir dire. As for the question itself, defense counsel indicated that the question had been suggested by the Government, that it had had no objection to the question, and that it supported including the question.
Having heard nothing further on this topic from the parties, on January 26 the Court issued an Order requiring the parties to advise the Court whether they wished the Court's proposed question or a different question included in the voir dire. The Court's proposed question, first presented to the parties in the January 26 Order, was: "You may hear evidence that the defendant is homosexual. Do you have any views about homosexuality that would make it difficult for you to be a fair and impartial juror in this case?"
On January 27, defense counsel requested that the question included in the parties' voir dire be asked and separately moved in limine to preclude all reference at trial to the defendant's sexual orientation. Because of the timing of this motion practice, it is unlikely to be resolved in advance of the voir dire process. There is no indication in the in limine motion that the parties have begun or completed their efforts to resolve the issue, by stipulation or otherwise, and the Government has not yet been heard on the motion.
The parties' proposed voir dire question is not helpful to either the venire or the parties. It will not assist prospective jurors in understanding if they have a material bias that would impact their service as a juror in this case or assist the parties in identifying such jurors. While the Court remains skeptical that the issue need be addressed at all, it will include a question if the defense can formulate an appropriate one and provide it to the Court by Friday, January 29, at 10:00 a.m. To assist the parties, the Court offers another proposed question for the parties' consideration: "You may hear evidence that one or more of the individuals that the Government contends ran Liberty Reserve is homosexual. Do you have any views about homosexuality that would make it difficult for you to be a fair and impartial juror in this case?"
Accordingly, it is hereby
ORDERED that no question regarding homosexuality will be included in the Court's written voir dire unless the defendant provides a suitable question addressed to this topic by Friday, January 29, at 10:00 a.m. Dated: New York, New York
January 28, 2016
/s/_________
DENISE COTE
United States District Judge