TOPIC: TERRY LYNN NICHOLS' OBJECTION TO IMPROPER ANALOGY IN COURT QUESTIONING OF JUROR NO. 348

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: October 7, 1997

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Ronald G. Woods, Esq., N. Reid Neureiter, Esq., Adam Thurschwell, Esq., Jane B. Tigar, Esq., For the Defendant Terry Lynn Nichols.

TEXT:

Terry Lynn Nichols respectfully objects to an analogy made by the Court in the questioning of Juror No. 348 on the afternoon of October 6, 1997. Juror 348 is a workman's compensation claims adjuster for her large corporate employer.

The juror had articulated a view that Mr. Nichols' is guilty. Tr. 1623 lns 17-20. Twice, the juror had placed on the defendant the burden of proof, expressing a willingness to change her mind "if there was overwhelming evidence to show different than what I had believed in before." Tr. 1626 lns. 2-3; see also 1625 lns. 13-14.

In discussing whether the juror could set aside the preconceived views which she apparently shares with her "neighbors, friends, relatives" and co-workers (Tr. 1624 lns 20-23), the Court analogized the duty of a juror with Number 348's work as a claims adjuster:

Q: And you're not going to support payment of a claim that isn't proved.

A: That's right.

Q: And does it happen in your work every day--not every day, but it happens in your work that sometimes you have a thought about, well, they'll never be able to support this claim, and then, yeah, at a later time, you find that it's there?

A: It happens quite a bit.

Q: So you have sometimes, as you pick up a file, a notion about how it's going to come out and then it comes out differently; is that what you're saying?

A: Correct.

Q: And that's the way you're going to look at it here?

A: Yes.

Tr. 1628 lns. 1-16. Terry Nichols respectfully objects.

Rather than a proper analogy, the proposed comparison between the venireperson's work as a claims adjuster and the duty of sitting impartially while presuming the innocence of a defendant is inappropriate. As a claims adjuster, the juror works for her corporation--a party to a dispute. An adjuster is obliged to assess and minimize potential claims and limit the amount of time off for which the claimant will be compensated. As a party to the dispute, the adjuster is represented by counsel and is usually confronting counsel for the claiming employee. See Tr. 1614 lns. 2-3. The adjuster assessing the claim knows that she has an interest in the outcome of the dispute, and is under no obligation to set aside any preconception that a claim is invalid.

*2 The Supreme Court of the United States has ruled categorically that a finder of fact who has or appears to have an interest in the outcome cannot be deemed impartial. In re Murchison, 349 U.S. 133 (1955) (same judge cannot preside in contempt proceeding who had presided at hearing where contempt allegedly arose); Offutt v. United States, 348 U.S. 11 (1954) (where trial judge had become personally embroiled with counsel, he should not have sat on contempt proceeding); Tumey v. Ohio, 273 U.S. 510 (1927) (officers acting in judicial or quasi-judicial capacity are disqualified by their pecuniary interest in the controversy). The Court's analogy incorrectly suggests to Juror 348 that it is permissible for her to come into the process as an adversary with a preconception about the outcome, so long as there exists the possibility that she could change her mind based on what is presented at trial.

The function of a juror, who must presume the defendant's innocence, is fundamentally different from a claims adjuster who seeks to balance the corporation's financial interest with the legitimate interests of those seeking compensation. The adjuster need not put aside a preconception of a claim's invalidity. Indeed, it is likely that adjusters are taught to cultivate skepticism about all claims. By contrast, to serve, this juror must put aside her preconceptions about Mr. Nichols' guilt. The willingness to be convinced otherwise would not be enough to give Mr. Nichols a fair trial.