*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.

TOPIC: MOTION OF TERRY LYNN NICHOLS TO REQUIRE THAT THE GOVERNMENT SHOW CAUSE FOR EXCUSING JURORS

DOCKET-NUMBER: 96-CR-68-M

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

YEAR: Filed: September 23, 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., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

Terry Lynn Nichols, by counsel, respectfully moves the Court to require that the government show cause for excusing any juror from the petit jury. Only Mr. Nichols should be permitted the right of exercising peremptory challenges; the government should be limited to raising challenges for cause. As applied to capital cases, Federal Rule of Criminal Procedure 24(b) violates due process and the Sixth Amendment

Congress' power to regulate court procedure is subject to proscription under the Due Process Clause if it offends some principle of justice so rooted in the traditions of our people as to be ranked fundamental. Cooper v. Oklahoma, 116 S.Ct. 1373 (1996). Those traditions, as construed by the common law, the First Congress, and the Supreme Court dictate that the government's challenges be made for cause alone.

Argument

"Historical practice is probative of whether a procedural rule can be characterized as fundamental." Cooper v. Oklahoma, 116 S.Ct. 1373, 1377 (1996). The common law, the Framers, and the early Supreme Court recognized the exercise of peremptory challenges as a right capital defendants enjoyed exclusively.

In his Commentaries on the Laws of England, Sir William Blackstone introduces us to the peremptory challenge in.the following manner:

But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without shewing any cause at all; which is called a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous.

* * *

This privilege, of peremptory challenge, though granted to the prisoner, is denied to the king by statute 33 Edw.I. st. 4. which enacts, that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court.

4 WILLIAM BLACKSTONE, COMMENTARIES *346-347.

When the Framers of the Constitution and the Bill of Rights gathered as the First Congress, they recognized the right of capital defendants to exercise peremptory challenges. They did not, however, recognize in any form a similar right for the prosecution. 1 Stat. 112, 119 s 30 (1790). Section 30 of the Crimes Act of 1790 states:

*2 And be it further enacted, that ... if any person or persons be indicted of any other of the offences herein before set forth, for which the punishment is declared to be death, if he or they shall ... challenge peremptorily above the number of twenty persons of the jury; the court, in any of the cases aforesaid, shall notwithstanding proceed to the trial of the person or persons so ... challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.

1 Stat. 112, 119 s 30 (1790). The early Supreme Court stated:

The court is of the opinion that the right of challenge by the prisoner recognized by the act of 1790, does not necessarily draw along with it the qualified right, [FN1] existing at common law, by the government ...

FN1. This "qualified right" is not at issue here. It was the right to "stand aside" jurors, not to challenge them.

End of FN.

United States v. Shackleford 59 U.S. 588 (1855) (recognizing that in all other cases, excepting treason against the United States and capital cases, the procedures of the states would determine the exercise of peremptory challenges). Thus, American historical practice has required that the prosecution show cause for excusing any juror in a capital case. This historical practice defines both a due process and Sixth Amendment right.

A defendant's right to require that the prosecution show cause before excusing any juror does not interfere with or defeat the Constitutional goal of an impartial jury. As a matter of law, jurors that survive challenges for cause are impartial.

No person shall ... be deprived of life, liberty or property, without due process of law. U.S. CONST. amend. V. The Supreme Court has recognized the increasing value placed on an individual's interest beginning with his property, Fuentes v. Shevin, 407 U.S. 67 (1972), moving to his liberty, In Re Winship, 397 U.S. 358 (1970), and finally his life, Furman v. Georgia, 408 U.S. 238, 290 (1972) (J. Brennan concurring) ("Death is truly an awesome punishment ... The contrast with the plight of a person punished by imprisonment is evident ... A prisoner remains a member of the human family"). It has shaped the jurisprudence of burdens of proof accordingly. Addington v. Texas, 441 U.S. 418, 423 (1979); see also Cooper, 116 S.Ct., at 1381 ("[D]ue process places a heightened burden of proof on the State in ... proceedings in which the individual's interests at stake ... are both particularly important and more substantial than mere loss of money").

The constitutional distinction between life and liberty requires the extra protection of having the government show cause in excusing jurors. The common law, the First Congress, and the Supreme Court recognized the importance of this distinction. The Eighth Amendment recognizes its importance. Footnote 34 in Furman lists a number of cases so holding. See Furman v. Georgia, 408 U.S. 238, 287 (1972) (Brennan, J. concurring) ("This Court ... almost always treats death cases as a class apart"); see e.g. Williams v. Georgia, 349 U.S. 375 (1955) (Frankfurter, J.) ("That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and noncapital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant"); see also Eddings v. Oklahoma, 455 U.S. 104 (1982) (requiring that a capital jury be able to consider circumstances of the offense and the offender). The present death penalty statute recognizes importance in this distinction. 18 U.S.C. s 3593(b) (requiring a trial on liberty and a trial on life in all capital cases). This court should recognize the unequaled interest in life and require the procedural protection envisioned by historical practice--that the government show cause in excusing jurors.

*3 We note that the defendant's right to a limitation of the prosecutor's challenges to cause is distinct from a claim that the defendant has a constitutional right to exercise peremptory challenges. In any event, it is only a half truth to state that peremptory challenges are not required by the Constitution. In Stilson v. United States, 250 U.S. 583, 586 (1919), the Supreme Court stated, "[t]here is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is secured." This is true for most criminal cases but is not true for capital ones. The distinction is one the common law, 4 WILLIAM BLACKSTONE, COMMENTARIES *346-347, the First Congress, 1 Stat. 112, 119 s 30 (1790), and the early Supreme Court, United States v. Shackleford, 59 U.S. 588 (1855), were aware of and recognized. "[T]he right of peremptory challenge in capital cases, which existed at common law, has been spoken of as 'one of the most important rights secured to the accused.' " Frazier v. United States, 335 U.S. 497, 506 n. 11 (1948) (holding that "in noncapital cases, such as this, the privilege affords protection additional to constitutional guaranties ...").

Stilson was not a capital case. It was a case in which the defendants faced a possible penalty of a fine of not more than $10,000 or imprisonment for not more than twenty years, or both. Stilson, 250 U.S., at 584. Discussions of Stilson in Supreme Court capital case dicta are not controlling. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (capital case citing Stilson ); see also Gray v. Mississippi, 481 U.S. 648, 663 (1987) (capital case citing Stilson ); see also Swain v. Alabama, 380 U.S. 202, 219 (1965) (capital case citing Stilson ).

It may be that defendants in cases other than those for treason against the United States and capital cases, have no constitutional right to any number of peremptory challenges at all. See generally United States v. Hueftle, 687 F.2d 1305, 1309 (10th Cir.1982) ("Multiple defendants have no right to more peremptory challenges than given them by the rule ...."); accord United States v. Williams, 463 F.2d 393 (10th Cir.1972); accord United States v. Stidham, 459 F.2d 297 (10th Cir.1972). None of the preceding cases, however, were capital cases. Mr. Nichols is a capital defendant on trial for his life. If he were given anything less than the common law and historically allotted number of twenty peremptory challenges we would contest the deprivation. As recently as 1977 such an encroachment was attempted and rebuffed by Congress. FED. R. CRIM. P. 24 advisory committee's note.

Conclusion

*4 For the foregoing reasons, we respectfully request that the Government be required to show cause for challenging any juror in the trial of capital defendant Terry Lynn Nichols.

Dated: September 23, 1997