TERRY LYNN NICHOLS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXCUSE JUROR #959

Chief Judge Richard P. Matsch 

UNITED STATES OF AMERICA,

Plaintiff,

v.

TERRY LYNN NICHOLS,

Defendant

______________________________________________________________________________

______________________________________________________________________________

Mr. Nichols, by counsel, respectfully submits this memorandum of law in support of his motion to excuse Juror #959 from jury service. The ground for Mr. Nichols’ motion is the fact that Juror #959 is the former college roommate of the Court’s niece and acquainted with the Court’s brother. 10/15/97 Tr. 3276-7. Although Juror #959 is otherwise qualified, this relationship with the Court’s close relatives causes concerns of sufficient magnitude that excusal is required.

It is a normal part of every trial (and has already occurred in this one) that the Court will admonish counsel about their questions to witnesses or other conduct. It is also likely that the Court will comment on the testimony and evidence presented, for example, by explaining how certain witnesses’ testimony may be evaluated. See Quercia v. United States, 289 U.S. 466, 469 (1933) (it is within the trial judge’s province to "assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important . . . [and by] express[ing] his opinion upon the facts"). These prerogatives are limited by the requirements that the Court maintain both the appearance and actuality of impartiality in its dealings with the parties, 28 U.S.C. §§ 144, 455, and (with respect to commentary on the evidence) that the court make it clear to the jurors that they are the ultimate judges of the facts. Quercia, 289 U.S. at 469.

Even a court that remains impartial, however, will inevitably from time to time suggest impatience, frustration or some other form of disapproval of counsel. Similarly, even where properly cautioned, "[t]he influence of the trial judge on the jury ‘is necessarily of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’" Id., at 470 (cite omitted). These types of judicial statements are nevertheless sometimes necessary and proper, and the potential for unfair influence on the jury’s view of the parties and evidence can be managed by instructions that the jury should draw no conclusions from the Court’s statements. See 1 Devitt, Blackmar, Wolff, and O'Malley, Federal Jury Practice and Instructions (4th ed. 1992), §§ 11.04 (Court’s Comments to Counsel) and 11.06 (Court’s Comments on Certain Evidence).

Where a juror has a special relationship of some kind with the Court, however, it is far less clear that these instructions will be effective. Mr. Nichols has a concern that Juror #959’s friendship with the Court’s niece will foster a desire to gain the Court’s approval by identifying with the Court’s (perceived) views of the parties and evidence, and that this very natural desire will impair her ability to disregard the Court’s occasional disapproving remarks to counsel and to evaluate the evidence independently of what she infers is the Court’s view of it. The Court’s own, very understandable desire to bring Juror #959 up to date on his niece’s whereabouts suggests the pull of this relationship, and both demonstrates and reinforces the possibility that the juror’s perception of the relationship will exert an influence on her decision making. 10/15/97 Tr. 3277-8. Even subtle communicative behavior by a court can have a prejudicial influence on a jury. See Rigney, "Gestures, Facial Expressions, or Other Nonverbal Communication of Trial Judge in Criminal Case as Grounds for Relief," 45 A.L.R.5th 531 (1997). A juror who is particularly attuned to the Court’s nonverbal signals because of a perceived personal connection poses a significantly greater risk of undue influence than one who has no connection.

Finally, even if Juror #959 would be entirely unmoved by her pre-existing relationship with the Court’s niece, there is an inappropriate appearance of such a risk that by itself warrants excusal. See United States v. Gigax, 605 F.2d 507, 510 (10^th Cir. 1979) ("‘to perform its high function in the best way ‘justice must satisfy the appearance of justice’’") (quoting In re Murchison, 349 U.S. 133, 136 (1955)).

Already during the course of Juror #959’s voir dire the Court characterized one of defense counsel’s questions as "unfair" and counsel as becoming "argumentative." 10/15/97 Tr. 3311, 3315. Regardless of the Court’s intentions, the impact on this juror’s impressions of counsel made by these types of comments is very likely to be far greater than the impact of the same admonishments on a juror with no sense of relationship to the Court. Mr. Nichols therefore respectfully moves that Juror #959 be excused.

Conclusion

For the foregoing reasons, Mr. Nichols respectfully requests that Juror #959 be excused from serving on the jury in this case.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)

I hereby certify that a copy of the foregoing motion was served this 17^th day of October, 1997 on Larry Mackey, Special Attorney to the U.S. Attorney General, 1961 Stout Street, Suite 1200, Denver, CO 80294 by hand delivery.

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Adam Thurschwell