IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA )
v. ) CR. NO. 96-0152-01 (JR)
xxxxxxxxxx )
MOTION OF xxxxx FOR INDIVIDUALIZED
VOIR DIRE BY COUNSEL AND INCORPORATED MEMORANDUM
xxxx xxxxxx, by and through undersigned counsel, move the Court for an Order permitting defense and government counsel to voir dire the venire panel individually.
MEMORANDUM IN SUPPORT
1. Individualized voir dire by counsel is essential so that the defendants can effectively and adequately exercise his peremptory challenges in selecting jurors. In light of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny, including Georgia v. McCollum, 112 S.Ct. 2348 (1992), and J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419 (1994), parties (including an accused) cannot exercise their peremptory challenges based on their personal race or gender biases or prejudices.
2. Case law now holds that where there is a prima facie case of racial discrimination in the exercise of a party's peremptory challenges, that party "must articulate a racially neutral explanation for the peremptory challenge." McCollum, 112 S.Ct. at 2359; see Batson, 476 U.S. at 98. Similarly, if there is a prima facie case of gender discrimination, counsel must offer a gender-neutral, non-pretextual explanation for the peremptory challenge. J.E.B., 114 S.Ct. at 1430. To enable the accused to exercise his peremptory challenges intelligently and adequately, and to ensure that they can be supported by a race and gender neutral explanation, individualized voir dire is essential.
3. The Supreme Court's decision in J.E.B. declared:
If conducted properly, voir dire can inform litigants about potential
jurors, making reliance upon stereotypical and pejorative notions about a particular
gender or race both unnecessary and unwise. Voir dire provides a means of
discovering actual or implied bias and a firmer basis upon which the parties may exercise
their peremptory challenges intelligently, See, e.g., Nebraska Press
Assn. v. Stuart, 427 U.S. 539, 602 . . . (1976) (Brennan, J., concurring in the
judgement) (voir dire "facilitate[s] intelligent exercise or peremptory
challenges and [helps] uncover factors that would dictate disqualification for
cause"); United States v. Witt, 718 F.2d 1494, 1497 (CA10 1983) ("Without
an adequate foundation [laid by voir dire], counsel cannot exercise
sensitive and intelligent peremptory challenges").
114 S. Ct. at 1429 (brackets in original). Because, as Justice O'Connor pointed out in her concurring opinion in J.E.B., litigants can no longer simply rely on their intuition in exercising peremptory challenges, 114 S.Ct. at 1432 (O'Connor, J., concurring), fairness dictates that defense counsel be given an opportunity to voir dire the venire panel individually to ensure that a fair and impartial jury is selected consistent with the dictates of Batson and its progeny.
CONCLUSION
For the foregoing reasons, the Court should enter an Order permitting defense and government counsel to voir dire the venire panel individually so that the accused can effectively and adequately exercise his peremptory challenges in selecting jurors.
Respectfully submitted,
L. Barrett Boss
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 2004
(202) 208-7500
Dated: May 5, 1999
IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA )
v. ) CR. NO. 96-0152-01 (JR)
xxxxxxxxxxxxxx)
O R D E R
Upon consideration of the Motion of xxxxxxxx for Individualized Voir Dire by Counsel and Incorporated Memorandum, it is this day of July, 1996, hereby
ORDERED that the motion is granted; and it is further
ORDERED that defense and government counsel will permitted to voir dire the venire panel individually, subject to additional limitations as to time and content to be set at or near the time of trial.
JUDGE JAMES ROBERTSON
UNITED STATES DISTRICT COURT JUDGE
Copies to:
L. Barrett Boss
Assistant Federal Defender William Sullivan
625 Indiana Avenue, N.W. Assistant U.S. Attorney
Suite 550 555 4th Street, N.W.
Washington, D.C. 20004 Washington, D.C. 20001
Daniel Ellenbogen, Esquire
717 D Street, N.W., #400
Washington, D.C. 20004
Christopher Davis, Esquire
601 Indiana Avenue, N.W., #910
Washington, D.C. 20004
Joseph Conte, Esquire
601 Pennsylvania Avenue, N.W., #900
Washington, D.C. 20004
Joanne Hepworth, Esquire
305 H Street, N.W., 2nd Floor
Washington, D.C. 20001
Ed Wilhite, Esquire
325 Pennsylvania Avenue, S.E. Suite 249
Washington, D.C. 20003
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing motion was served upon William Sullivan, Assistant United States Attorney, 555 - 4th Street, N.W., Washington, D.C. 20001, by hand delivering a copy to a receptacle at the United States District Courthouse, 3rd and Constitution Avenue, N.W., Washington, D.C. provided for pleadings upon the Office of the United States Attorney, and counsel for co-defendants: Daniel Ellenbogen, Esquire, 717 D Street, N.W., #400, Washington,
D.C. 20004; Christopher Davis, Esquire, 601 Indiana Avenue, N.W., #910, Washington, D.C. 20004; Joseph Conte, Esquire
601 Pennsylvania Avenue, N.W., #900, Washington, D.C. 20004;
Joanne Hepworth, Esquire, 305 H Street, N.W., 2nd Floor, Washington, D.C. 20001; Ed Wilhite, Esquire, 325 Pennsylvania Avenue, S.E. Suite 249, Washington, D.C. 20003, on this 22nd day of July 1996.
__________________________
L. Barrett Boss
Assistant Federal Public Defender