United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE
IS ORDERED that defendants's Motion for
New Trial (Rec. Doc. 127) is
motion, defendant seeks a new trial arguing that the court
improperly denied his challenge for cause of Juror 31.
Defendant also argues that due to administrative problems, a
juror who was not impartial was seated. Specifically, defense
counsel points to the fact that because several prospective
jurors who had legitimate hardships were not flagged as such
by the jury administrator's office, they were included in
the venire and selected. Only after their selection was the
court made aware of their legitimate hardships, requiring
that they be excused. This resulted in a shortfall of two
jurors and an alternate. To remedy this shortfall, by
agreement of the court and counsel, venire members who had
been dismissed as unnecessary were recalled and tendered,
resulting in the seating of Juror 38. Defendant argues that
he previously had not raised a cause challenge as to Juror
38, because at the time he made his challenges, the court
needed only two alternates from venire members 33 through 40,
and he anticipated the court would never reach Juror 38. He
further alleges that the cause challenge would have been
successful if raised.
government opposes the motion, arguing that defense counsel
is mischaracterizing Juror 31's testimony, and that when
the totality of the examination of Juror 31 is considered,
the court's ruling denying the motion to strike her for
cause was justified.
deciding whether to strike a potential juror for cause based
on bias, "it is the adversary seeking exclusion who must
demonstrate, through questioning, that the potential juror
lacks impartiality. It is then the trial judge's duty to
determine whether the challenge is proper."
Wainwright v. Witt, 469 U.S. 412, 423
(1985)(internal citation omitted). The standard applied in
making that determination is "whether the juror's
views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions
and his oath." Id. at 424 (internal quotation
omitted). The judgment as to “whether a venireman is
biased ... is based upon determinations of demeanor and
credibility that are peculiarly within a trial judge's
province." Uttecht v. Brown, 551 U.S. 1, 7
beginning of voir dire, Juror 31 agreed that she could put
aside feelings of prejudice, sympathy, or passion and decide
the cose solely on the evidence presented. Tr., p. 11. When
questioned individually, her relevant testimony was as
A: I do not gamble.
Q: And do you have a particular attitude toward those who do?
A: I think it's a silly way to spend your money, but
that's what you choose to do. That's on you. But I
mean I've had family members in the past that have had
issues with gambling.
Q: In other words, you've had people who perhaps do it
and have caused problems -- A: Yes.
Q: -- for their families?
Q: How do you view gambling? I mean is it something -- Again,
I can't look into your brain. But is it something you
view as wrong, immoral, unethical? What?
A: I don't think it's so much immoral or unethical. I
just -- Again, I don't agree with it. I just think
it's silly, a way to throw your money away, personally.
Q: Would it affect the way you judge somebody who you will
learn is an avid gambler?
Q: Okay. I appreciate your honesty. I mean if you say
"possibly," you're leaving the possibility that
it could affect you in an ...