TOPIC: TERRY LYNN NICHOLS' STATEMENT CONCERNING JURY SEQUESTRATION AND PROPOSED JURY QUESTIONNAIRE

DOCKET-NUMBER: CR 95-110-A

VENUE: U.S. District Court for the Western District of Oklahoma.

YEAR: Filed: September 28, 1995

JUDGE: Hon. Wayne E. Alley, Judge

ATTORNEY(S): Michael E. Tigar, Esq., Austin, Ronald G. Woods, Esq., Houston, D. Kate Rubin, Deputy Federal Public Defender, For the Defendant Terry Lynn Nichols.

TEXT:

Terry Lynn Nichols, by counsel, files this statement concerning jury sequestration, and (under seal) a proposed jury questionnaire. The sealed portion is attached hereto in a sealed envelope marked SEALED MATTER. Under this Court's order, the proposed questionnaire does not contain any material relating to death penalty issues, and is otherwise subject to change based on research conducted in connection with pretrial venue motions, and in discovery.

STATEMENT CONCERNING SEQUESTRATION

A. The Legal Standard

Apropos of sequestration, the Tenth Circuit has said:

We realize that the problem [of exposure to inadmissible evidence from media coverage during trial] will not arise if the jurors are sequestered and prevented from reading, hearing, and watching news accounts. We also realize that sequestration imposes a hardship on jurors and should be ordered only in unusual cases.

Mares v. United States, 303 F.2d 805, 808 (10th Cir.1967), citing Coppedge v. United States, 272 F.2d 504, 508 (D.C.Cir.1959), cert. denied, 368 U.S. 855 (1960). This Tenth Circuit view cautions parties not to seek, and trial judges not to grant, sequestration as a "knee-jerk" response to the prospect of publicity. Other circuits have embraced sequestration more warmly, but the Tenth takes the sort of practical view that Mr. Nichols and his counsel find congenial.

The D.C. Circuit's statement in Coppedge is even more forceful and eloquent:

Under modern conditions juries are customarily permitted to separate, even over weekends, and, unless there be exceptional circumstances, they should be permitted to do so. Of course newspapers carry articles about public trials of sensational interest, and of course those accounts may, and frequently do, carry statements of facts totally outside the evidence being produced in the courtroom. Our newspapers have complete rights to publish such accounts and such additional facts. But it is essential to a fair trial of a defendant that the jurors should not know the contents of, lest they take account of, such newspaper stories. In order to protect, so far as possible, this essential right of a defendant, we have required that trial courts call the attention of jurors specifically to the possibility of such newspaper accounts and to admonish jurors not to read them. This has been a rule for the past twenty years, or longer, and this is at least the third time we have emphasized it. What is said here applies with equal force to radio news broadcasts or telecasts.

*2 272 F.2d at 507.

To see why sequestering juries is a bad idea, we must recall what jury service is all about.

The constitution provides in two places for the jury trial of criminal cases. U.S. Const., art. 3, s 2, p 12; amend. 6. The Sixth Amendment expressly guarantees an "impartial" jury. The Supreme Court, has consistently held that jury service is both a right and a duty of citizenship. Litigants and prospective jurors have the right to jury selection procedures that do not exclude any qualified citizen for an improper reason. Improper reasons include race, economic status (see Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) (exclusion of wage workers improper)), gender and age. The Jury Selection and Service Act of 1968, codified to 28 U.S.C. s 1861 et seq., carries out the constitutional mandate that the jury should be a fair and random cross-section, and extends that mandate by providing a method for selecting prospective jurors.

In the line of cases that begins with Batson v. Kentucky, 476 U.S. 79 (1986), the Court has brought to fruition the concept that no private or public interest stands in the way of jury service for all qualified citizens. See generally Charles A. Wright, Federal Practice & Procedure, Criminal 2d s 384 (Supp.1995).

Once the jury is selected, the law takes care that jurors have the opportunity to decide the case fairly. Jurors may not discuss the case amongst themselves until all the evidence is in. Those guarding the jurors may not try to influence them. Our ideal is that the jury come together at the moment the case is submitted to them, and become a deliberative body wielding great and largely unreviewable power.

B. The Bad Aspects of Sequestration--And Answers to Important Questions on Trial Management

Sequestration is at war with these ideals, particularly in a long trial. If one wants evidence of this, the ongoing saga of the O.J. Simpson trial provides more than enough. Apart from what we all have seen of late, some common sense observations are in order:

1. Sequestration shrinks the jury pool and excludes people because of their family and economic status. Most Americans do not receive their full salary while on jury duty. People who cannot support their families on the jury fee will seek exclusion from the jury. That means that wage workers, particularly those in lower-paid non-union jobs, will seek exclusion. People who own or operate small businesses will see that sequestration in a long trial may mean economic ruin.

In the Simpson trial, this inevitable impact was combined with another--for hours and sometimes days at a time, the jurors were kept sitting in the anteroom while lawyers wrangled. Some of the jurors might have recalled the bitter irony of English poet Stevie Smith's lines: "It is the privilege of the rich, To waste the time of the poor." We don't want a trial that treats jurors like that. We want a trial that empowers jurors to perform the dispassionate and difficult job of sifting this mountain of evidence, alert for the countless nuggets of reasonable doubt they will find there.

*3 Our proposed answer: Don't sequester. Do what many judges are doing in complex cases, to enhance the jury pool and keep jurors alert and interested. Tell the jurors that the jury trial sessions will be held four days per week, for about seven hours per day with an hour break for lunch. Tell the lawyers that sidebar conferences and motions will not, except in emergencies, be heard during the times set aside for jury trial. Such matters can be presented before the jury arrives, after the jury leaves, or on the "day off." This sort of schedule permits jurors to take care of some of their business, and encourages people that the trial will not be a physical ordeal. In counsel's experience, this kind of schedule actually moves the trial along more smoothly, because counsel are encouraged to reach agreements on procedural matters and they have time to prepare each day's presentation.

2. Sequestration is based on false hopes in a trial with heavy media coverage. Counsel for Mr. Nichols have a total of more than 60 years experience in the criminal justice system, including service as FBI agent, law clerk, prosecutor, law teacher and defense counsel. In counsel's experience, jurors follow their oaths. Indeed, our justice system rests largely upon the confident assumption that jurors obey the instructions they are given. They try diligently not to see or hear media coverage. To minimize risks of the jury inadvertently seeing inadmissible evidence, the court can schedule suppression and in limine hearings well in advance of trial. It is unlikely in any event that there will be sensational matters arising in this context.

Sequestration also gives a false hope of insulating jurors from the impact of media coverage because they are kept together, they are shuttled back and forth under guard, and they inevitably see the media people who are assembled near the courthouse. They see the sketch artists in the courtroom, and the reporters. The jurors know there is a lot of media coverage. The temptation to try and see what its all about is just as great as if they were not sequestered, and the pressures from seeing the amount of media attention are not altered by placing the jurors in captivity.

We suggest that the court do the following, with such notice, hearing and specific findings as are required by first amendment standards: First, the court can find that there is a genuine risk to a fair trial from juror and witness contact with the media. The court has the power to create a "cordon sanitaire" around the courthouse to allow jurors, witnesses, and other trial participants to come and go without being accosted by the media or by anyone else. The court can and should issue a statement that contact with jurors by anyone in a manner that endangers a fair trial is a criminal offense and a contempt of court. The court has the power to fashion an order on this issue, and counsel stands ready to help draft an order that will pass constitutional muster. Counsel for Mr. Nichols has experience in representing parties to litigation and media groups, as well has having argued a leading Supreme Court decision on media coverage of trials.

*4 3. Sequestration puts psychological pressure on jurors that interfere with their deliberative function. If any party seriously seeks sequestration, we would request a hearing at which we can present expert evidence. Our own experience, and shared observations with colleagues, shows that the pressures of being away from family, friends and normal pursuits has the following effects: First, jurors can develop a kind of "Stockholm syndrome," in which they identify with their captors. Their captors are, after all, responsible for providing all the jurors' sustenance; they even control access to telephones, to medical attention, to the ordinary necessities of life. In a case where law enforcement officers are the victims of the crime on trial, this sort of dependency relationship can translate into an undue sympathy for prosecution's interests.

Second, when jurors are separated from their families, and in a "pressure cooker" atmosphere, relationships and hostilities develop that may prevent the jury from coming together as a deliberative body when the case is submitted. We have all seen plenty of evidence of this in a recent publicized trial.

Third, while many law enforcement officers--marshals, prison guards and so on--have been thoroughly professional in their dealings with the defense, others have been decidedly hostile and belligerent. We understand this attitude, for some of these officials lost colleagues and friends in this tragedy. However, the prevalence of such attitudes--as to which we offer to present evidence if the need arises--creates a high risk of remarks being made to sequestered jurors that will require a mistrial or the setting aside of any judgment obtained.

Fourth, sequestered jurors worry about their families, their friends, and their business and financial interests. They are distracted from paying full attention to the trial, and from their deliberative duties.

These (and other) risks are palpable and inevitable. Given the Tenth Circuit presumption against sequestration, the balance tips decisively. The potential evils of publicity and unauthorized juror contact can be combated with effective action by the court, supported by counsel.

Conclusion

For the foregoing reasons, we oppose sequestration and ask for a hearing if the Court is seriously considering it. That hearing should take place reasonably close to any trial date, to better gauge the pros and cons based on experience. In addition, we submit with this filing an initial proposed jury questionnaire.