Opinion
No. 4:01CR3040
May 30, 2002
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO RECONSIDER
This matter is now before me on the plaintiff United States of America's Motion to Reconsider the Exclusion of Jurors Based Upon Their Formation of a Preliminary Opinion, filing 56. In an April 3, 2002, order, the magistrate judge granted the defendant Anthony Wright's Motion to Allow Jury Questionnaire, and a questionnaire was sent out to the jury pools for both Lincoln and Omaha. See filings 46, 30; see also filing 47 (ordering the clerk to utilize the jury pools for both Omaha and Lincoln in preparing the venire in this case). This questionnaire included the following inquiry: "Have you formed an opinion about whether the person arrested for [the alleged kidnapping of Anne Marie Sluti] may be guilty or innocent? If so, what is your opinion." Questionnaire to Prospective Jurors at #22.
The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska.
Copies of the completed questionnaires were forwarded to both the plaintiff and the defendant. On May 17, these questionnaires were discussed during the pretrial conference. With respect to the question outlined above, I concluded that any potential juror who expressed an opinion that the defendant might be guilty would be automatically excluded from consideration as a juror. The government now challenges this decision, arguing that I "applied an incorrect standard, and in doing so [have] excluded a number of jurors who are perhaps best qualified to serve as a juror not only in this but in any case." Br. in Supp. of the Mot. to Reconsider the Exclusion of Jurors Based Upon Their Formation of a Preliminary Opinion [hereinafter Government's Brief] at 1; see also Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs. Co., 48 F.3d 1066, 1070 (8th Cir. 1995) ("The district court has the inherent power to reconsider and modify an interlocutory order any time prior to the entry of judgment." (citing Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir. 1992)); Lovett, 975 F.2d at 522 ("When a district court is convinced that it incorrectly decided a legal question in an interlocutory ruling, the district court may correct the decision to avoid later reversal." (citation omitted)).
According to the government, the proper test "`is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court."'" United States v. Mercer, 853 F.2d 630, 633 (8th Cir. 1988) (quoting Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir. 1977); Murphy v. Florida, 421 U.S. 794, 800 (1975)). The government also contends that the most appropriate time to resolve this question is during voir dire, when the court has the opportunity to judge a potential juror's demeanor and credibility. See Mercer, 853 F.2d at 633; United States v. Blom, 242 F.3d 799, 805 (8th Cir. 2001), cert. denied, 122 S.Ct. 184 (2001). The government therefore concludes as follows:
By automatically rejecting any juror who answered question No. 22 by indicating an opinion of guilt, no matter how tentative the opinion, the Court has deprived the United States of an opportunity to pursue the follow up questioning afforded it in any jury trial and has potentially deprived the Court of individuals who are not only well equipped, but may be better equipped, to serve the role required of a juror.
Government's Brief at 3; see also id. ("By excluding those individuals who have an interest in current events, read the newspapers, and otherwise make an effort to stay informed, the Court is automatically excluding a number of individuals who due to their interest and intellect can best serve the function of a juror.").
The flaw in the government's argument is that it relies solely on cases in which the defendant challenged an adverse ruling on a change-of-venue motion. See Mercer, 853 F.2d at 632-33; United States v. Bliss, 735 F.2d 294, 297 (8th Cir. 1984); Irvin v. Dowd, 366 U.S. 717, 719-20 (1961); United States v. Brown, 540 F.2d 364, 377 (8th Cir. 1976); Blom, 242 F.3d at 802. At issue in these cases was the defendant's Sixth Amendment right to an "impartial jury." U.S. Const. amend. VI; see also Irvin, 366 U.S. at 722 ("In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process."). Thus, while the above authority may suggest that it would have been proper for me to wait until voir dire to determine whether certain jurors should be excluded based on their opinions regarding the defendant's guilt, such cases are not particularly helpful in analyzing the government's claim that I erred in excluding these jurors at an earlier stage of the proceedings.
In addition, the Eighth Circuit has recognized that trial courts may take various precautions "to assure the selection of an unbiased jury," including the mailing of questionnaires to potential jurors inquiring about their exposure to pretrial publicity. See Blom, 242 F.3d at 804. In denying the Defendant's Statement of Appeal of Magistrate Judge's Order, I suggested that the questionnaire may save "time and expense" in assembling an impartial jury. See Mem. Order on the Def.'s Statement of Appeal of the Magistrate Judge's Order Denying the Def.'s Mot. for a Change of Venue at 14. It seems that the questionnaire has served such a purpose. After carefully reviewing the responses, I concluded that the exclusion of certain jurors would both streamline the voir dire process and aid in the selection of an unbiased jury. See, e.g., Irvin, 366 U.S. at 724-25 ("`Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.'" (quoting United States v. Wood, 299 U.S. 123, 145-46 (1936))). As noted above, the government has cited no authority indicating that this decision was in error, and I see no reason to alter my conclusion regarding those individuals who have already formed the opinion that the defendant might be guilty. Thus, the government's motion to reconsider will be denied.
IT IS ORDERED that the plaintiff's Motion to Reconsider the Exclusion of Jurors Based Upon Their Formation of a Preliminary Opinion, filing 56, is denied.