Free Order - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1058-4

Filed 03/20/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. 3. 4. NORMAN SCHMIDT, GEORGE ALAN WEED, CHARLES LEWIS, and MICHAEL SMITH, Defendants.

JURY SELECTION PROTOCOL ORDER Blackburn, J. IT IS ORDERED as follows: 1. That 12 regular jurors and four (4) anonymous,1 alternate jurors shall be selected; 2. That the four (4) alternate juror seats shall be as designated by the court during the Trial Preparation Conference on March 2, 2007; and shall be known only to the court and the parties; 3. That the court will use a "block," (aka a modified civil) jury selection protocol whereby 38 prospective jurors will be called by lot and seated together as a panel to

The seating position of the four, alternate jurors shall be known only to the court and the parties. The parties and their counsel shall exert their best efforts to eschew prem ature disclosure of the position or identity of any alternate juror.

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Case 1:04-cr-00103-REB

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Filed 03/20/2007

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which voir dire examination shall be directed;2 4. That the government shall have six (6) peremptory challenges, plus two (2) additional peremptory challenges to be exercised as to the prospective alternate jurors only;3 and that each defendant shall have three (3) peremptory challenges,4 which may be exercised separately or collectively as the defendants or any combination of the defendants may agree,5 plus two (2) additional peremptory challenges to be exercised collectively as to the prospective alternate jurors only; 5. That once 38 prospective jurors, or some lesser number directed by the court, have been qualified and passed for cause, the parties shall exercise their regular (nonalternate) juror peremptory challenges as to prospective regular (non-alternate) jurors one (1) through sixteen (16) only, with replacement jurors being chosen by lot from the remaining prospective jurors 17 through 38, as a prospective regular juror is excused by peremptory challenge; and the parties shall exercise their alternate juror peremptory challenges only as to the four prospective alternate jurors, with replacement alternate jurors being chosen by lot from the remaining prospective jurors 17 through 38;6
At counsel's discretion, voir dire exam ination m ay be directed at the panel of 38 prospective jurors as a whole or to individual prospective jurors or to groups of prospective jurors.
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See F ED . R. C R IM . P. 24(c)(4)(B).

For a total of 12 perem ptory challenges allocated to the defendants. See F ED . R. C R IM . P. 24(b), which authorizes the court to increase the num ber of defense perem ptory challenges. This provision does not vitiate the right of any defendant to exercise separately his three (3) perem ptory challenges notwithstanding any other agreem ent reached by anyone or m ore of the other defendants. The parties m ust superintend sedulously the exercise of their perem ptory challenges to eschew the prem ature excusal or identification of a prospective alternate juror whose position on the panel within the first 16 of 38 will be unknown to all but the court and the parties. Only the final two perem ptory challenges, i.e., strikes seven and eight, of the governm ent m ay be used vis-à-vis prospective alternate jurors, and only the last two perem ptory challenges, i.e., collectively, strikes 13 and 14, of the defendants
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6. That A peremptory challenge shall be by audible strike made in open court by the party exercising the challenge. 7. That when the court directs, the parties shall exercise their regular (nonalternate) juror peremptory challenges in the following order: · · First of 6 by government; First of 3 by Schmidt separately or collectively by agreement of the defendants, but chargeable against Schmidt's 3 challenges; · First of 3 by Weed separately or collectively by agreement of the defendants, but chargeable against Weed's 3 challenges; · · Second of 6 by government; First of 3 by Lewis separately or collectively by agreement of the defendants, but chargeable against Lewis's 3 challenges; · First of 3 by Smith separately or collectively by agreement of the defendants, but chargeable against Smith's 3 challenges; · · Third of 6 by government; Second of 3 by Weed separately or collectively by agreement of the defendants, but chargeable against Weed's 3 challenges; · Second of 3 by Lewis separately or collectively by agreement of the defendants, but chargeable against Lewis's 3 challenges; · · Fourth of 6 by government; Second of 3 by Smith separately or collectively by agreement of the

(continued) m ay be used. See F ED . R. C R IM . P. 24(c)(4).

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defendants, but chargeable against Smith's 3 challenges; · Second of 3 by Schmidt separately or collectively by agreement of the defendants, but chargeable against Schmidt's 3 challenges; · · Fifth of 6 by government; Third of 3 by Lewis separately or collectively by agreement of the defendants, but chargeable against Lewis's 3 challenges; · Third of 3 by Smith separately or collectively by agreement of the defendants, but chargeable against Smith's 3 challenges; · · Sixth of 6 by government; Third of 3 by Weed separately or collectively by agreement of the defendants, but chargeable against Weed's 3 challenges; and · Third of 3 by Schmidt separately or collectively by agreement of the defendants, but chargeable against Schmidt's 3 challenges; 7 8. That when the court directs, the parties shall exercise their alternate juror peremptory challenges in the following order:8 · · · · First of two by government; First of 2 by defendants collectively; Second of two by government; and Second of two by defendants collectively;

Assum ing, arguendo, that a party accepts the panel without exhausting its com plem ent of perem ptory challenges, no "backstriking" is perm issible. Instead, any rem aining perem ptory challenges m ay be exercised only as to prospective jurors who are seated subsequent to the party having accepted the panel, pro tanto. Failure to exercise a perem ptory challenge as to an alternate juror constitutes a waiver of that particular perem ptory challenge,
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9. That following voir dire examination by the court, the government may conduct voir dire examination for not more than 30 minutes, and each defendant may conduct voir dire examination for not more than 20 minutes, commencing with defendant Schmidt, followed by defendants Weed, Lewis, and Smith, or in the order the defendants may agree otherwise;9 10. That if a prospective juror is excused for cause during voir dire examination conducted by an attorney, the replacement prospective juror shall be subject to voir dire examination by the court and by counsel for any part who has already completed voir dire examination, not to exceed one (1) minute per party;10 11. That during voir dire examination, counsel shall exert his best efforts to eschew reiteration of previous questions; 12. That during voir dire examination, counsel shall refrain from propounding leading questions; and 13. That during voir dire examination, counsel shall refrain from propounding questions which are case or evidence specific. Dated March 20, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

Pending further order, the court is not now im posing specific topic lim itations. Additionally, at counsel's discretion, voir dire exam ination m ay be directed at the panel of 38 prospective jurors as a whole or to individual prospective jurors or to groups of prospective jurors. This additional one m inute is in addition to the tim e allocated for voir dire exam ination to each party in ¶ 9, supra.
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