U.S. v. Fell, No. 201CR1201.

• Decision Date: 25 May 2005
• Docket Number: No. 201CR1201.
• Citation: 372 F.Supp.2d 766
• Parties: UNITED STATES of America v. Donald FELL.
• Court: U.S. District Court — District of Vermont

372 F.Supp.2d 766

UNITED STATES of America v. Donald FELL.

No. 201CR1201.

United States District Court, D. Vermont.

May 25, 2005.

William B. Darrow, Stephen D. Kelley, Asst. U.S. Attys., Burlington, VT, for Plaintiff.

Alexander Bunin, Esq., Gene Primomo, Esq., Paul Volk, Esq., Burlington, VT, for Defendant.

OPINION AND ORDER: VOIR DIRE

SESSIONS, Chief Judge.

As the Court writes this opinion, this capital case is in the midst of the lengthy voir dire process. The Court has established a two-part procedure for voir dire. First, each potential juror fills out an extensive questionnaire, which, in addition to standard voir dire questions, includes questions about personal history, knowledge of the case, and opinions regarding the death penalty. Second, each juror is questioned individually, first by the Court, then by attorneys for both the Government and the Defendant Donald Fell. The Court's questions focus upon views concerning the death penalty and exposure to pretrial publicity.

At the outset of voir dire, Fell's counsel sought to expand the area of inquiry to include case-specific questions. In particular, counsel wished to ask jurors whether they could fairly consider aggravating and mitigating factors given the existence of certain case-specific facts. The Court has permitted these questions, provided the primary purpose of such questions is to ensure impartiality as opposed to committing jurors to particular findings. This opinion outlines the reasons for this decision.

This opinion also explains the Court's approach to challenges for cause. At times, the Court has granted challenges for cause even though the prospective juror has indicated a willingness to follow the Court's instructions. The Court has sometimes looked past prospective jurors' literal answers and has based rulings on the demeanor of the jurors. The Court has also focused on prospective jurors' answers to open ended questions rather than on answers to leading questions. This practice is consistent with Supreme Court authority.

Discussion

Voir dire of prospective jurors serves the critical purpose of affording a criminal defendant a fair and impartial jury. As the Eighth Circuit has recently explained:

The Sixth Amendment guarantees the criminally accused a fair trial by a panel of impartial, indifferent jurors. Voir dire serves the purpose of assuring a criminal defendant that this right will be protected. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. Similarly, lack of adequate voir dire impairs the defendants' right to exercise peremptory challenges.

United States v. Ortiz, 315 F.3d 873, 888 (8th Cir.2002) (quotation marks and internal citations omitted). These principles have long been reflected in the key Supreme Court cases addressing the role of voir dire. See, e.g., Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion); Dennis v. United States, 339 U.S. 162, 171-172, 70 S.Ct. 519, 94 L.Ed. 734 (1950).¹

A. Life-Qualifying Questions

Of particular importance to this case, is the Supreme Court's decision in Morgan v. Illinois. In Morgan, the Supreme Court considered whether, during voir dire in a capital case, a trial court may refuse to ask "life-qualifying" or "reverse-Witherspoon" questions upon the request of defense counsel. 504 U.S. at 724, 112 S.Ct. 2222. These questions inquire if a juror would automatically impose a death sentence after a conviction for a capital offense. Id. The Supreme Court held that, under the Due Process Clause of the Fourteenth Amendment, such inquiries must be made if the defendant so requests. See id. at 738-39, 112 S.Ct. 2222.

In Morgan, the trial court asked questions to `death qualify' jurors in accordance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). These questions asked jurors if their personal feelings about the death penalty would prevent them from ever voting for the death penalty, regardless of the facts of the case. The defendant requested that the court make a corresponding inquiry as to whether, after a conviction, the jurors would automatically vote for the death penalty. Morgan, 504 U.S. at 723, 112 S.Ct. 2222. The trial court refused this request, although it did ask all prospective jurors if they could be fair and impartial to both sides and if they could follow the "instructions on the law even though you may not agree." Id.

The Morgan Court held that a defendant may challenge a prospective juror for cause if that juror would automatically vote for the death penalty after a conviction. The Court stated:

A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.

Id. at 729, 112 S.Ct. 2222.

The central question in Morgan was whether general `follow the law' questions were adequate to protect the defendant's right to exclude jurors who would automatically vote for the death penalty. See 504 U.S. at 729, 734, 112 S.Ct. 2222. Illinois argued that these general questions would be enough to detect those jurors who would automatically vote for the death penalty. Id. at 734, 112 S.Ct. 2222. The Supreme Court disagreed. The Court noted that "[a]s to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed." Id. at 735, 112 S.Ct. 2222. The Supreme Court was concerned that jurors might agree to follow the law unaware that their views on the death penalty would interfere with their ability to do so. Id. As a result, a "defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception." Id. at 735-36, 112 S.Ct. 2222.

In Morgan, the Supreme Court acknowledged that general `follow instructions' questions provide little guidance. When a prospective juror is asked, "Will you follow the court's instructions?", almost all jurors will immediately respond positively. Nevertheless, many of these jurors may have considerable difficulty following instructions. Such jurors will not have been dishonest in their response to the general question. Rather, these jurors do not know what the Court's instructions are likely to be. Thus, they are unable to accurately determine whether they will be able to follow these instructions. This is why general questions are unable to "detect those jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath." Morgan, 504 U.S. at 734-35, 112 S.Ct. 2222.

B. Case-Specific Questions

In addition to the general `life-qualifying' questions required by Morgan, counsel for Fell have asked case-specific questions regarding aggravating and mitigating factors that may be presented in this case. The Government objects to these inquiries and argues that questions predicated on facts specific to the case at trial or upon speculation as to what facts may or may not be proven at trial are always improper. The Court disagrees.

The Government bases its argument on United States v. McVeigh, 153 F.3d 1166 (10th Cir.1998). In McVeigh, the trial court refused to allow defense counsel to ask case-specific questions. 153 F.3d at 1207-08. The Tenth Circuit held that such question were not required by Morgan. Id. at 1208. Moreover, the court stated that "Morgan is designed to illuminate a juror's basic beliefs ... not to allow defendants to pre-determine jurors' views of the appropriate punishment for the particular crime." Id. The court held that case-specific questions are improper because they seek "to determine what prospective jurors thought of the death penalty in regards to this particular case." Id.

This Court respectfully disagrees with McVeigh to the extent that it holds case-specific questions are always improper under Morgan. In fact, the Court concludes that the Supreme Court's reasoning in Morgan supports the use of case-specific questions in some circumstances. The entire premise of the Morgan decision is that highly general questions may not be adequate to detect specific forms of juror bias. See 504 U.S. at 734-36, 112 S.Ct. 2222. Thus, Morgan suggests that, in appropriate circumstances, the parties should be allowed to ask more specific questions to investigate potential bias.

Other cases support the conclusion that the parties should be given an opportunity to inquire regarding specific forms of juror bias. In Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Supreme Court unanimously held that, upon the request of the defendant, a trial judge must inquire into the possibility of racial prejudice at voir dire. Similarly, courts frequently inquire into jurors' ability to fairly weigh the testimony of law enforcement officers. In some circumstances, failure to ask prospective jurors about their attitudes toward law enforcement testimony is reversible error. See United States v. Gelb, 881 F.2d 1155, 1164 (2d Cir.1989); United States v. Anagnos, 853 F.2d 1 (1st Cir.1988);...