UNITED STATES DISTRICT COURT

_________________ DISTRICT OF TEXAS

___________________  DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. __________________
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___________________	                             §

 MOTION FOR ATTORNEY-CONDUCTED VOIR DIRE

TO THE HONORABLE ________________, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE ______________ DISTRICT OF TEXAS:

	______________ asks that the Court grant counsel for each side in this case 30 minutes  to conduct collective and individual voir dire of the jury venire in his case.  Allowing counsel’s questions to supplement the Court’s will further the interests of justice in this complicated case. Alternatively, ___________ asks that, if the Court chooses to conduct the entire voir dire in this case, it question venire members individually. This motion is made pursuant to Rule 24(a) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the U.S. Constitution.
 	I
	Federal Rule of Criminal Procedure 24(a) permits the district court to allow counsel for the parties to “conduct the examination of prospective jurors.” Another option provided by Rule 24, and the one more typically taken in federal court is for the court itself to conduct the voir dire examination. When a court chooses to conduct the voir dire, Rule 24 permits the Court to allow supplemental voir dire questions by counsel. Fed. R. Crim. P. 24(a).  This case is one in which such supplemental questioning by counsel should be allowed. Issues raised by the allegations of a cross-racial homicide and the tenuous invocation of federal authority after a state acquittal, require close and extensive questioning of the jurors. Supplemental questioning by counsel for the parrties will help ensure that all the information necessary to impaneling a fair and impartial jury is elicieted.    	II.
	Voir dire provides a means of discovering actual or implied bias Federal Rules of Criminal Procedure 24(a) provides that the Court may conduct voir dire examination itself, or it may allow counsel to conduct the examination of prospective jurors.  When the Court conducts the voir dire examination, the rule requires that counsel be given the opportunity to supplement the examination by such further inquiry as the Court deems proper.  The Court has discretion to allow counsel to conduct the supplemental inquiry, or the Court, itself, may do so.  Fed. R. Crim P. 24(a).  .”  J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 144 (1994). 
Federal Rules of Criminal Procedure 24(a) provides that the Court may conduct voir dire examination itself, or it may allow counsel to conduct the examination of prospective jurors.  When the Court conducts the voir dire examination, the rule requires that counsel be given the opportunity to supplement the examination by such further inquiry as the Court deems proper.  The Court has discretion to allow counsel to conduct the supplemental inquiry, or the Court, itself, may do so.  Fed. R. Crim P. 24(a).  

; see also United States v. Delval, 600 F.2d 1098, 1102 (5th Cir. 1979) (“Full and complete voir dire is, of course, necessary for the adequate development of any facts requiring the removal of a juror for cause as well as for the intelligent exercise of peremptory challenges.”). 
	While recognizing the trial court’s discretion in this matter, the Fifth Circuit has noted that “voir dire may have little meaning if it is not conducted at least in part by counsel.” United States v. Ible, 630 F.2d 389, 395 (5th Cir. 1980).  The court of appeals found the federal practice of almost exclusive voir dire examination by the court problematic because it “does not take into account the fact that it is the parties, rather than the court, who have a full grasp of the nuances and the strength and weaknesses of the case.” Id.   Voir dire examination conducted without a full appreciation of the nuances of the case would make it unlikely that the hidden prejudices of the jurors will be uncovered.  United States v. Corey, 625 F.2d 704, 707 (5th Cir. 1980) (“Knowing what specific questions to ask is difficult for the judge, who lacks the same grasp attorneys have of the complexities and nuances of a particular case.”).  Without the opportunity for counsel to effectively probe for these hidden prejudices, it would be difficult to accomplish the goal of exercising sensitive and intelligent peremptory challenges.  See Ible, 630 F.2d 389, 395 (“Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes.”).  
	As the Fifth Circuit has noted, “[e]xperience indicates that in the majority of situations questioning by counsel would be more likely to [gain the necessary information] than an exclusive examination in general terms by the trial court.  Id.  This is particularly so in cases where the possibility of prejudice is so great that specific voir dire questions are considered necessary.  Such cases include those involving potentially prejudicial pretrial publicity, racial overtones, and allegations of gang association.  See United States v. Davis, 583 F.2d 190, 196–97 (5th Cir. 1978) (district court erred in failing to ask specific, individual questions concerning possible prejudice stemming from pretrial publicity); United States v. Jones, 722 F.2d 528, 529-30 (9th Cir. 1983) (indicating need for individual questioning in cases involving racial overtones).  Each of these circumstances exist in ___________ case.
	 _______________ was a nineteen year old African American at the time of the events alleged in the indictment.  In Counts One and Two, the Government alleged that the charges arose from _____________ gang activity.  Courts have “long recognized the substantial risk of unfair prejudice attached to gang affiliation evidence, noting such evidence ‘is likely to be damaging to a defendant in the eyes of the jury’ and that gangs suffer from ‘poor public relations.’”  United States v. Irvin, 87 F.3d 860, 864 (7th Cir, 1996) (internal citations omitted).  A “jury’s negative feelings toward gangs” creates a danger that such evidence will improperly influence its verdict because of “guilt by association.”Id; cf. United States v. Parada-Talamantes, 32 F.3d 168, 179 (5th Cir. 1994) (vacating conviction because of guilt-by-association evidence).  	III.
	__________________ residents, in particular, may have a heightened perception that young, economically disadvantaged African Americans are likely to be involved in violent street crime, especially when gang affiliation is alleged.  A review of recent _________  Express News articles underscores this potential bias.  The Express News reported that “San Antonio police used force most often in the past three years when responding to calls in high-crime, poor, minority neighborhoods. . . .” Sonia Garza & Bill Hendricks, as Crime Rises, So Does Force; SAPD Stats Show Officers Tougher in Rougher Areas, San Antonio Express-news, May 5, 2002, available at 2002 WL 20696734.  That article notes that African Americans and Hispanics are more likely to be subject to altercations with police, and that there is a prevailing perception that “a person of a particular race may present. . . a greater danger,” and that “when the police see [minorities], they see a stereotype” of “gang members.”  Id.  Although this article deals with police perceptions, it may well reflect views in the population at large.  Such views are harbored by media references to San Antonio’s “ignominous status of the mid-1990s when it was known as the drive-by shooting capital of the United States[.]” Cary Clack, Vigil Gives Voice to People Weary of Crime, Drugs and Fear, San Antonio Express-news, June 3, 2002, available at 2002 WL 20699244.   Clack’s article informs readers that drive-by shootings are returning with a vengeance and that teenagers and gang members are frequently involved in the commission of this type of crime.  Id.   Such views are also harbored by the basic fact that “minorities are disproportionately represented in poor neighborhoods” and as a consequence are likely to be both a victim and a perpetrator of such crime.   Garza & Hendricks, as Crime Rises, So Does Force; SAPD Stats Show Officers Tougher in Rougher Areas, 2002 WL 20696734.  In order to increase the likelihood that any hidden prejudices of the jurors will be uncovered, and to insure that a fair and impartial jury is empaneled in _______________’s case, counsel should be given an opportunity to individually examine prospective jurors regarding these issues.
	In addition to possible prejudice stemming from the gang allegations and racial issues in this case, the pretrial publicity and the case’s unique history require specific, individual examination.  See Davis, 583 F.2d 190, 196–97.  Recently an extensive article about _______________’s case appeared on the front page of the San Antonio Express News.  See Maro Robbins, Murder Case from 1996 Has New Life, San Antonio Express-news, Aug. 25, 2002, available at 2002 WL 23795142.  The article detailed the unique history of the case and contained potentially prejudicial comments, including comments by Judge Tom Rickhoff, who years ago put _______________ on juvenile probation, and who “has made this case a personal crusade of sorts.” Id.  Rickhoff notes that he and James Bean’s survivors “look to the new case as a way to seek justice long overdue.”  Id.  In addition to the recent article, at the time of ____________ State trial, at least five articles appeared discussing the allegations and the personal views of those affected by the case and ____________ acquittal.  See e.g. Gloria Padilla, Man Acquitted in Shuttle Killing, San Antonio Express-news, Aug. 27, 1997, available at 1997 WL 13202079.
	In Davis, the Fifth Circuit held that the district court erred in not undertaking a more thorough examination of panel members exposed to publicity. Davis, 583 F.2d 190, 196.  It found that “where the nature of the publicity as a whole raised a significant possibility of prejudice, the cursory questioning by the court was not enough.” Id.  A district court is required, under Davis, to determined what in particular each juror may have heard or read and how it may have affected his attitude toward the trial, and whether any juror’s impartiality had been destroyed. Id; see also Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968) (“[I]n the absence of an examination designed to elicit answers which provide an objective basis for the court's evaluation, ‘merely going through the form of obtaining jurors’ assurances of impartiality is insufficient [to test that impartiality].”) (citation omitted).  Because it is likely that prospective jurors have been exposed to potentially prejudicial pretrial publicity in this case, specific, individual voir dire question is required.  Davis,  583 F.2d 190, 196–97.  In order to increase the likelihood that any hidden prejudices of the jurors will be uncovered, to accomplish the goal of exercising sensitive and intelligent peremptory challenges, and to insure that a fair and impartial jury is empaneled in ___________ case, counsel should be given an opportunity to individually examine prospective jurors.
	For these reasons, __________ asks that the Court allow counsel an opportunity to conduct collective and individual voir dire of the jury venire in his case.
							Respectfully submitted.
							___________________________
							Attorney for Defendant

CERTIFICATE OF SERVICE

	I certify that I served a copy of ____________ Motion for Attorney Conducted Voir Dire on the United States Attorney for the _________ District of Texas (ATTN: ___________, Assistant U.S. Attorney), by mailing it to his office at _________________, on __________                , 20_________.

							
						Attorney for Defendant

UNITED STATES DISTRICT COURT

_______________ DISTRICT OF TEXAS

__________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. _________________
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O R D E R

	The Court has considered ____________ Motion for Attorney Conducted Voir and, after that consideration, the Court finds that the motion should be GRANTED.  Accordingly, it is ORDERED that counsel for ____________ and counsel for the Government will each be allotted a specified amount, to be set by the Court prior to jury selection, to personally examine the jury venire in this case.
	So ORDERED and ENTERED on this the             day of                                , 20___.

							
						
						United States District Judge