U N R E D A C T E D IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------------------------------------------------- ANA PATRICIA CHAVEZ, CECILIA ) SANTOS, JOSE FRANCISCO ) CALDERON, ERLINDA FRANCO, AND ) DANIEL ALVARADO, ) ) Plaintiffs, ) ) VS. ) NO. 03-2932-Ml/P ) ) NICOLAS CARRANZA, ) ) Defendant. ) ------------------------------------------------------- TRIAL PROCEEDINGS BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE OCTOBER 31, 2005 VOLUME I BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 2 A P P E A R A N C E S Appearing on behalf of the Plaintiffs: BASS BERRY & SIMS PLC 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TENNESSEE 37238-3001 By: DAVID R. ESQUIVEL, ESQ. CAROLYN PATTY BLUM, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 291 WEST 12TH STREET NEW YORK, NEW YORK 10014 MATTHEW J. EISENBRANDT, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 870 MARKET STREET, SUITE 684 SAN FRANCISCO, CALIFORNIA 94102 Appearing on behalf of the Defendant: FARGARSON & BROOKE 65 UNION AVENUE 9TH FLOOR MEMPHIS, TENNESSEE 38103 By: ROBERT M. FARGARSON, ESQ. BRUCE BROOKE, ESQ. 3 4 1 MONDAY MORNING & AFTERNOON 2 OCTOBER 31, 2005 3 The jury trial in this case began on this date, 4 Monday, October 31, 2005, at 9:30 o'clock a.m., when and 5 where evidence was introduced and proceedings were had as 6 follows: 7 8 ____________ 9 10 THE COURT: There are two individuals who did 11 not -- who were no shows in connection with the jury, and 12 they are Latonya Payton, P-A-Y-T-O-N, and Alicia Booker, 13 Ms. Booker, B-O-O-K-E-R, Payton, P-A-Y-T-O-N. I need to 14 tell you that they're not here. There is nothing we can 15 do about it in the sense of delaying the proceeding. You 16 should note that they are not here, and I do not 17 anticipate unless we go through the whole panel that we 18 would attempt to have them come in for the case. So if 19 there is no objection -- it is an administrative matter 20 really for the docket administrator, and she has advised 21 us that that is our situation, and we will handle it 22 administratively differently, we will ask people to come 23 for a different panel probably. If there is nothing else, 24 those two people will not be appearing on the panel. 25 Anything from the plaintiff on that? VOIR DIRE OF THE JURY 5 1 MR. ESQUIVEL: No, no objection. 2 THE COURT: Anything from the defense? 3 MR. FARGARSON: No objection. 4 (Jury panel in at 9:35 a.m.) 5 THE COURT: Ladies and gentlemen, I want to 6 welcome you to the United States district court for the 7 Western District of Tennessee. Today we're going to be 8 selecting a jury for a trial, and before we can do that, I 9 need to swear in the interpreters. This will be a case in 10 which some individuals will be hearing this case in 11 Spanish, and you will also be hearing some testimony which 12 will be translated. Our interpreters in this case are 13 Mr. Urrutia and Mr. Icaza. Because they will be here -- 14 I'm looking for them right now. There they are. They're 15 right there. If you will both raise your right hand, I 16 will have you sworn in as interpreters in this case. 17 THE CLERK: Do you solemnly swear that you will 18 give a true interpretation of these proceedings before 19 this court, so help you God? 20 THE INTERPRETER: I do. 21 THE INTERPRETER: I do. 22 THE COURT: Ladies and gentlemen of the jury, 23 everything that we say will be translated into Spanish, 24 and that includes everything I'm saying now and all of 25 your responses and everything the attorneys say. Our VOIR DIRE OF THE JURY 6 1 interpreters are very highly qualified. I will tell you 2 that they translate literally. In other words, they do 3 not editorialize, they do not modify anything, they 4 tell -- they speak the language in which they're 5 interpreting or to which they're interpreting exactly as 6 it can be interpreted to that language. They don't modify 7 things. They don't express their own opinion in any way, 8 and it is a very sophisticated complicated certification 9 process that they go through in order to be certified 10 interpreters. I'm saying that because I want to you 11 understand it is not like your neighborhood friend who 12 translates something loosely into a friend's language. It 13 is not how it is done at all in court. It is a very 14 precise process. I need you to know that in this case. 15 Now, ladies and gentlemen, I have to have all 16 of you stand and be sworn in before I can ask you any 17 questions, and Mr. Warren will administer the voir dire 18 oath. If you will raise your right hands. 19 THE CLERK: Do you and each of you solemnly 20 swear that the answers to the questions to be propounded 21 to you by the court in this case for which you may be 22 drawn as a juror to be the truth, the whole truth and 23 nothing but the truth, so help you God? 24 THE JURY: I do. 25 THE COURT: You may be seated. What we will do VOIR DIRE OF THE JURY 7 1 is we will be calling 14 of your names at random, and as 2 your names are called, I will ask you to come forward and 3 take a seat in the jury box. The first person whose name 4 is called will be asked to sit in the first seat on the 5 first row with seat number one, all the way down to the 6 last seat on the first row, and Mr. Ruby is here, and he 7 will make sure that you get to the right location. The 8 last seat on the first row is seat number seven. The 9 eighth person whose name is called will be asked to sit in 10 the first seat on the second row, which is actually our 11 seat number eight, and then all the way down to seat 14 12 which is right next to one of our interpreters. So if you 13 will listen carefully, we will proceed to call the first 14 14 names which will be randomly selected. 15 THE CLERK: Robert Russell, R-U-S-S-E-L-L. 16 Adaline Fields, F-I-E-L-D-S. Mary Farmer, F-A-R-M-E-R. 17 Charles Fowler, F-O-W-L-E-R. Ronald Francis, 18 F-R-A-N-C-I-S. Arnita Ragsdale, R-A-G-S-D-A-L-E. 19 Kristina Foran, F-O-R-A-N. Edward Miller, Jr., 20 M-I-L-L-E-R. Mary Reber, R-E-B-E-R. Barbara Fulgham, 21 F-U-L-G-H-A-M. Juanita Richardson, R-I-C-H-A-R-D-S-O-N. 22 Latoya Hebron, H-U-B-R-O-N. Kenneth Yeager, Jr., 23 Y-E-A-G-E-R. Natalie Reed, R-E-E-D. 24 THE COURT: First of all, I want to thank you 25 for filling out the questionnaires in this case. It is VOIR DIRE OF THE JURY 8 1 extremely helpful. Also, avoids some time, although this 2 process will take a little time in any event, but I do 3 appreciate that from all of you. 4 Secondly, for those of you who are in the back 5 of the room, there is still a very significant, probably 6 high probability that many of you will be called as 7 potential jurors in the case. As we go through the 8 questioning process, that almost inevitably happens, so I 9 want you to pay close attention to all of the questions 10 that are asked so that you can be in a position to 11 promptly respond, that is give your answers to those 12 questions. I will help you out, I will go through the 13 questions to some degree again, but you may be asked also 14 to generally respond to the questions that have been 15 asked, so pay close attention. 16 BY THE COURT: 17 Q. I'm going to start with Mr. Russell, how are you this 18 morning? 19 A. Fine. 20 Q. I need to ask each of you what is the most important 21 characteristic for a person who is going to be on a jury, what 22 do you believe to be the most important characteristic for a 23 person who is going to be on the jury, what do you think that 24 might be? 25 A. I don't know exactly what you're talking about. VOIR DIRE OF THE JURY 9 1 Q. Well, if you were in the position of anybody out here 2 who is going to have a case tried, what kind of juror would 3 you want, what would be an important thing for that juror? 4 Some of us might have things we didn't want jurors to be like, 5 some would have things that we wanted jurors to be like, but 6 what would be a good characteristic, a favorable 7 characteristic that you would want the juror to have if you 8 had a case that was being presented on your behalf? 9 A. I want him to be true and honest. 10 Q. Somebody who was true and honest? 11 A. Yes, sir. 12 Q. Okay. Now, I'm going to ask that question of 13 everybody, and we're going to build a list of characteristics 14 because there are lots of -- exactly, there are lots of things 15 that we might want. There are also some things that we might 16 not want, and we can also talk about those. 17 I'm going to ask you to hand it to Ms. Fields. And 18 they also have a questionnaire, so they're trying to make sure 19 they have got your questionnaire out in time. I think they're 20 okay. Joe is getting mine out too, but I don't need them as 21 much as they do. I think we're set. 22 Ms. Fields, what is the most important characteristic 23 for somebody who is going to serve on a jury? 24 A. I guess to be attentive and to be objective. 25 Q. Okay. Be attentive and objective. VOIR DIRE OF THE JURY 10 1 Ms. Farmer, what would you add to our list, what you 2 think -- what do you think would be the most important 3 characteristic for a person who is going to be on a jury? 4 A. Well, the only thing that comes to my mind is to be 5 attentive and really listen. 6 Q. Well, listen, you added something to it, which you want 7 somebody who will listen, that is very important, obviously, 8 very, very important. Listen. 9 Mr. Fowler, what would you add to our list? You can 10 use one we have got, but there are lots of good 11 characteristics that we might want people to have? 12 A. I would think, Your Honor, don't let your personal 13 prejudice get in the way. 14 Q. Perfect. Avoid personal prejudice. I'm going to ask 15 you to explain that a little, I think it makes good sense, I 16 want to ask you to explain it a little bit. 17 A. Something might have happened to you in the past, 18 somebody crossed your path in a certain way and this case is 19 revolving around it. 20 Q. In other words, don't let your personal experiences 21 influence you inappropriately? 22 A. Yes, sir. 23 Q. Mr. Francis, what would you add to our list? 24 A. To be open-minded. 25 Q. Be open-minded, absolutely. Ms. Ragsdale? VOIR DIRE OF THE JURY 11 1 A. Integrity and open-minded. 2 Q. Integrity and, of course, open-minded. 3 Now, there's some others, there are many 4 characteristics that we want to add also. That's a great 5 list. 6 Is it Ms. Foran? 7 A. Yes. To be fair. 8 Q. To be fair, okay. Very good. If you will hand that 9 straight to Ms. Reed. Ms. Reed, what would you add to our 10 list? That is a great list, but there are some things we 11 don't have on it. 12 A. The only one that's really standing out to me is being 13 able to be focused, but I think that was touched on by being 14 attentive. You want someone who can be here in the present 15 mentally. 16 Q. Be focused, be present at all times, don't be 17 daydreaming? 18 A. Right. 19 Q. Okay. Mr. Yeager, it gets a little more complicated, 20 but there's some big ones out there. Let me suggest, for 21 example, you had to come in, you had to fill out a 22 questionnaire, you had to wait a little bit, what is an 23 important characteristic for every juror to have all of the 24 time? 25 A. Prompt. VOIR DIRE OF THE JURY 12 1 Q. Broke? 2 A. Prompt. 3 Q. I like that one, I think that's a good one. I don't 4 think anybody has ever said that. Be prompt, that's a great 5 one. Believe it or not, I have never had anybody say that, 6 and that is actually very important. Well, that's great. 7 Ms. Hebron, I will was getting to something else, what 8 else do we want to add to that list? 9 A. Thoughtful. 10 Q. Thoughtful, absolutely. Somebody who will be 11 thoughtful, and there's another way to say that too. What is 12 another way we might say being thoughtful? I mean what does 13 that mean to you? 14 A. It means to me when I say be thoughtful, thoughtful of 15 the situation and the problem. 16 Q. Pick the microphone up a little bit. 17 A. Thoughtful of the situation and the problem that -- I 18 guess what we're dealing with. 19 Q. In other words, be thorough, is that another way to say 20 that, thorough? 21 A. Yes. 22 Q. I want to make sure we say that. Thorough. It can be 23 said a couple of ways. 24 Ms. Richardson, things -- there is a couple of things, 25 big ones that we haven't said. VOIR DIRE OF THE JURY 13 1 A. I don't think I have it. They have taken mine. Alert, 2 alive and on top of things. 3 Q. Alert, alive and on top of things, those are all good. 4 And somebody actually said it earlier when they said you had 5 to come out and fill out a form, you had to spend some time, 6 you had to go upstairs and wait today, and then Mr. Yeager 7 said be prompt, that's important, but there's one that goes 8 with that too, because you have had to wait around some, what 9 does that mean? 10 A. Patient. 11 Q. That's great. 12 A. Patient, how about that? Thank you. 13 Q. And patient is very important because, you know, if 14 you're in a rush, this isn't the right job, this isn't the 15 right job. You have to be very patient. 16 Is it Ms. Fulgham? 17 A. Yes. 18 Q. How are you doing? 19 A. I'm good. Thank you. 20 Q. There are a couple of big ones that we haven't put down 21 on our list. What would you add to our list? 22 A. I don't know. Maybe a little courage. 23 Q. What do you mean by that? 24 A. Courage. 25 Q. I mean that can be -- the interpretation is important, VOIR DIRE OF THE JURY 14 1 so what do you mean by that? 2 A. I think I mean being able to concentrate and have the 3 courage to stand with what you think and what you believe. 4 Q. Okay. Now, does that mean that if somebody else says 5 something you shouldn't listen to them? That's what I'm 6 getting at on that. 7 A. Oh, no, no. 8 Q. You still listen to everybody? 9 A. Yes. 10 Q. But you want to speak up for what you think? 11 A. Yes. 12 Q. Both are fine, as long as you do them together? 13 A. That was my second or third choice. Patience, I had. 14 Q. And I will give you credit for that too, I have got it 15 down. 16 Ms. Reber, we have still got a couple that we want to 17 get out there that -- what is -- if you're trying a case in -- 18 let's just -- in Memphis, Tennessee, in west Tennessee, and 19 you speak Spanish, what would you might be concerned about as 20 to the panel, a really important thing that you might be 21 concerned about as to the panel, a big issue? 22 A. I don't know. I don't know what you're getting at. I 23 was just thinking courteous, fair. I guess somebody said 24 fair. 25 Q. Courteous? VOIR DIRE OF THE JURY 15 1 A. Open-minded. 2 Q. Courteous, fair, open-minded. 3 There's a constitutional principle that is the main 4 thing that a juror has to be under our United States 5 Constitution, is probably the only qualification that's 6 required of a jury under the Constitution. And the reason I 7 said if you speak another language, what would you be 8 concerned about if somebody didn't speak your language? 9 A. The interpretation. 10 Q. I think you might be concerned about -- let's see if 11 Mr. Miller wants to chime in on that. 12 A. I'm not sure I can help you. I don't know where you're 13 going. 14 Q. Prejudice, prejudice, how many people -- has anybody 15 ever heard anybody say something, well -- what is one of our 16 growing minorities in the Mid-South? 17 A. Hispanics. 18 Q. Hispanics. Have you ever heard anybody say anything 19 about Hispanics that wasn't exactly appropriate? 20 A. I'm sure I have. 21 Q. I wasn't trying to pick on you. Let's ask Ms. Reber, 22 give it back to her, she handed it off. Have you ever heard 23 anybody say something about Hispanics that was kind of 24 inappropriate? 25 A. Yeah, but i have heard good things too. You know, it VOIR DIRE OF THE JURY 16 1 goes both ways. 2 Q. Right, right. And either one could be a basis for bias 3 or prejudice, right? 4 A. Correct. 5 Q. I mean you could say, well, you know, gosh, everybody 6 who is Hispanic is wonderful or I don't like anybody who is 7 Hispanic, would either one be right? Maybe the first one is, 8 I don't know. 9 A. No, I guess it just depends on the situation. 10 Q. So we should be free of prejudice, and the jury -- and 11 the Constitution requires that every juror be impartial, 12 that's the constitutional requirement. You look for 13 instructions on how to select a jury, and that's the one where 14 you have got to be impartial. 15 Okay. Well, we have got a long list here. And hand it 16 back to Mr. Russell -- well, anything else, Mr. Miller, you 17 wanted to add to our list? 18 A. No, sir. 19 Q. I didn't really -- let's hand it back to Mr. Miller for 20 one -- I didn't get a new characteristic from you. 21 A. I don't know if it is new, I would just say a 22 willingness to understand both points of view and the 23 assertiveness to speak your mind. 24 Q. Okay. Willingness to understand both points of view 25 and -- all right. VOIR DIRE OF THE JURY 17 1 Mr. Russell, we went through a long process and you, of 2 course, said people should be honest and they should be true 3 or truthful. We have got attentive, objective, listen, avoid 4 prejudice. Mr. Fowler did add that early on. He said 5 particularly, though, as to your personal experiences 6 influencing people, be open-minded. Ms. Ragsdale, of course, 7 said integrity, open-mindedness. Ms. Foran wanted somebody to 8 be fair, of course. Ms. Reed, focused, not be daydreaming, 9 pay attention, of course. Mr. Yeager, be prompt, which is a 10 good one. Ms. Hebron, thoughtful and thorough, and 11 Ms. Richardson patient. Ms. Fulgham said to be -- she said 12 courage, and then we asked that question about what that 13 meant, to be patient, so forth. And then Ms. Reber, 14 courageous and open-minded, fair, and I think we have got 15 willingness to listen to both sides. The one thing that is a 16 constitutional requirement is impartiality, not be biased or 17 prejudiced for either side. 18 The first question is what are examples of prejudice in 19 society, and we're just going to go around and talk about that 20 very important subject. What is an example of a prejudice 21 that occurs, and there are lots of them, just like we had the 22 characteristics, what would you put on the list as maybe the 23 number one prejudice that you might have to deal with 24 sometimes? 25 A. I guess we should all get along together and -- VOIR DIRE OF THE JURY 18 1 Q. Famous saying about that. 2 A. -- not be jealous of each other. 3 Q. And what's sometimes a basis for prejudice, not that -- 4 hopefully, people don't have it, but we have to talk about it, 5 we have to make sure that we understand the concepts of bias 6 and prejudice, impartiality because if we don't know it, 7 sometimes it can creep up on us. What is a -- we live in the 8 south, but I don't think it matters where you live. There is 9 prejudice everywhere. What is an example of prejudice? It 10 can be anything from experiences you have in the workplace and 11 that sort of thing, but what is an example of things sometimes 12 people are prejudiced about? 13 A. I guess race, maybe. 14 Q. Race is certainly one of them, there's no question 15 about that. 16 Let's ask Ms. Fields because we want to add to our 17 list. 18 A. Character or integrity by the way a person looks. 19 Q. Okay. And you're saying -- we sometimes judge people 20 based on how they look, appearance? 21 A. Yes, appearance. 22 Q. Right. 23 A. Appearance is a better word. 24 Q. And do you think that really happens? 25 A. It does. VOIR DIRE OF THE JURY 19 1 Q. Okay. What is an example of how that happens? 2 A. Give you an example. Well, I guess sometimes when you 3 can walk into a room or into a situation, and just because 4 you -- because of your appearance, they may not think you're 5 intelligent, they may think you don't know anything, that you 6 can't make any decisions. 7 Q. And by appearance, just physical? 8 A. Physical appearance. 9 Q. Absolutely. Now, let's ask Ms. Farmer, what is another 10 prejudice that people have that can be based -- it can be a 11 racial prejudice, it can be based on appearance, other 12 prejudices that people may have? 13 A. Just disliking someone immediately just because they're 14 not of your background or your race. 15 Q. By background, what is an example of a background 16 issue? 17 A. Maybe -- I don't know. The same race as you, for 18 instance. 19 Q. Sure. And they can be -- it can be race, it can also 20 be a lot of other things out there. 21 Mr. Fowler, what is something people can be prejudice 22 about? We have got basically background, appearance, race. 23 A. I think a lack of knowledge of a particular race of 24 people or nationality. You know, we have to understand there 25 is more than one way to do something. Here in the United VOIR DIRE OF THE JURY 20 1 States, you know, we have a tendency to think this is the only 2 way to do it to get the job done. 3 Q. In other words, we can -- lack of knowledge is a good 4 way to put it. I'm trying to think of another -- 5 A. We definitely can learn from another race. 6 Q. We need to understand that we can learn from everybody. 7 A. Right. 8 Q. In other words, don't think we know it all, a good 9 point. 10 Mr. Francis, things people can be prejudice about? 11 There are lots of things, there are lots of things. 12 A. I think sometimes you can be prejudice on your classes 13 like the have and the have nots. 14 Q. Economic class. Now, does it work both ways? 15 A. Oh, definitely. 16 Q. So somebody who is rich or well off cannot like 17 somebody who is poor just because they don't have as much or 18 somebody who is poor can really dislike somebody who has got 19 more because of economic situation. 20 A. Right, jealousy, and, you know, just in general, you 21 see it everyday. 22 Q. Good point. 23 Ms. Ragsdale? 24 A. I think stereotype a person just because they're one 25 race that maybe all the people in one race is all the same, VOIR DIRE OF THE JURY 21 1 they have their own personalities. 2 Q. And that's absolutely prejudice, because when you look 3 at somebody and say everybody acts the same way, that's -- 4 that couldn't be more wrong, that is as wrong as you can get. 5 But sometimes people do that. 6 A. Yeah. 7 Q. Very bad thing. Let's get some other things on the 8 table too, Ms. Foran, because there are -- what is an example 9 that is pretty obvious? How old are you? 10 A. I'm 27. 11 Q. Okay, you're 27. And who is younger than 27 on this 12 panel that we have got so far? And how old are you? 13 A. 21. 14 Q. Exactly. Okay. Any prejudices that can happen there? 15 A. Are you hinting at age? 16 Q. Well, I'm doing the best I can. But does that happen? 17 A. Oh, yes, I think so. 18 Q. Okay. And does it happen obviously both ways? 19 A. Yes. 20 Q. What is your thought about that? I mean where is it 21 most common? 22 A. Most common? 23 Q. Yes. 24 A. I don't know, is there a really most common? I just 25 would think that it could be pretty much either way. VOIR DIRE OF THE JURY 22 1 Siblings, definitely, age difference there. 2 Q. Yeah. 3 A. Or -- 4 Q. What about the workplace being an issue? 5 A. Oh, gosh, yes, that's a problem for me. 6 Q. That's what I'm talking about, that's what I'm talking 7 about, exactly. And how can that be a problem? 8 A. Well, my situation, at least like most of the people 9 that I work with are older than me, and I took into -- I 10 walked into a position of more responsibility and authority, I 11 guess, and older people seeing a younger person as an 12 authoritative figure wasn't easily taken. 13 Q. Okay. And that -- that can be an age question. 14 Let's hand it back to Ms. Reed. Good point, though, 15 there. Ms. Reed, something we can add to our list, basis of 16 discrimination? 17 A. Political affiliation. 18 Q. Political affiliation. Give me an example there. 19 A. When some people realize you support a certain party or 20 candidate, they tend to lump you or make generalizations about 21 your entire character. If you are liberal, if you support a 22 liberal person, then they think that maybe your entire -- 23 that's your whole thought process concerning political things 24 that you -- you know, political issues, basically. 25 Q. Exactly. And they can make a judgment about other VOIR DIRE OF THE JURY 23 1 things or things that you might do? 2 A. Right. 3 Q. And what is your experience in that regard, is that a 4 valid way to analyze things? 5 A. You're asking me is it valid? 6 Q. Is it a valid way to analyze things? 7 A. No. 8 Q. I agree with you, I just want to make sure we're on the 9 same page. It is not a valid way because people have 10 different points of view on many, many things. 11 Let's see, Mr. Yeager, there are a couple of things out 12 there we haven't talked about that are pretty big ones. 13 A. Gender. 14 Q. Absolutely. And how does that come up sometimes? 15 A. Equal pay, equal benefits. 16 Q. It can be that way. Equal pay, equal benefits, and as 17 Ms. Foran described, she didn't say it, but she is young, 18 female, some male might not want to listen to her. Is that -- 19 I mean is that your experience that sometimes people treat 20 people -- it works the other way too. I suppose they can 21 stereotype men. What is your thought process there? 22 A. I have observed it before. 23 Q. And what sort of setting? 24 A. Probably workplace setting. 25 Q. Okay. How do you feel about it? VOIR DIRE OF THE JURY 24 1 A. I'm not in favor of it. 2 Q. Okay. And how did it make you feel when you 3 experienced -- saw that going on? 4 A. Well, my thoughts are each individual should be judged 5 on merit regardless of age, race, whatever. 6 Q. Okay. And gender? 7 A. And gender. 8 Q. Ms. Hebron, basis -- now, you're the youngest person on 9 the panel, would it be -- would you think it was inappropriate 10 for somebody who was much more senior to say, well, you just 11 don't know because you haven't been around? 12 A. Would I think it would be inappropriate? Yes, that's a 13 part of racism. I deal with that a lot too because most older 14 people feel as if you hadn't been around that you don't know 15 nothing, but they never know the situation or what you have 16 been told. 17 Q. So it is really not a fair way. Did you have something 18 else -- what else would you add to the list of biases and 19 prejudices? There are quite a few things to put on there. 20 A. Well, I been thinking, I just couldn't come up with 21 nothing. 22 Q. Well, are there any -- are there any situations where 23 someone makes an unfavorable comment about any group of people 24 on other bases? Nobody has come up still with the elephant in 25 the room, that is what I have been waiting for. VOIR DIRE OF THE JURY 25 1 A. I only thing I can say is it is probably racism -- 2 well, I can give an example, I just don't know how to explain 3 it, but like, for instance, in a workplace environment, I feel 4 it is racism because most people feel as if the Hispanics 5 don't know as much because they're not in the United States, 6 but they treat them different than what they will treat an 7 American. 8 Q. Is it less favorable that they treat them on occasion? 9 How do they treat them, better or worse? 10 A. Worse. 11 Q. Okay. And that's actually based on either a linguistic 12 characterization or national origin, I'm never sure which one 13 to say there. Because someone speaks a different language, 14 often it is language related. 15 A. Right. 16 Q. How do you try to deal with that, how do you feel you 17 ought to deal with that? 18 A. My opinion on that is that I feel that irregardless to 19 what they speak or how they look or where they're from, they 20 still should be treated like everyone else because -- just 21 because they speak a different language, that doesn't mean 22 that they don't know what is going on, and they should be 23 treated fairly. 24 Q. Should treat things based -- should be fair and based 25 on merit? VOIR DIRE OF THE JURY 26 1 A. Right. 2 Q. Ms. Richardson, that's a good comment. Something you 3 want to add about biases and prejudices? There are quite a 4 few. 5 A. I think of religious prejudices. 6 Q. Okay. And that's -- would you explain it a little bit? 7 I think everybody probably agrees with you. 8 A. Well, you know, some certain people won't get hired or 9 didn't get hired because of their religious beliefs, Jewish, 10 Catholic. Sometimes they have got hired because of the 11 belief, because they were a certain belief or religion, so it 12 goes both ways. 13 Q. It can either favor you or disfavor you? 14 A. Favor you or disfavor you, exactly. 15 Q. What is your experience, how does -- how should that be 16 dealt with? 17 A. Well, you should always be fair whatever you're doing, 18 you know, impartial, according to what the situation is. 19 Q. You should always weigh it based on the merits of the 20 situation? 21 A. Exactly. 22 Q. Good addition there, appreciate it. 23 Ms. Fulgham, what would you add in there, and there are 24 plenty of things to add still, a few things we need to talk 25 about? VOIR DIRE OF THE JURY 27 1 A. I don't know. Could there be physical disabilities? 2 Q. That's a great one, that's a great point there. And 3 have you ever seen that happen? 4 A. I'm sure that I have. I'm sure that just in ways of 5 being -- impatience, you know, or -- I think that's good, 6 patient with physical disabilities. 7 Q. And once again, how should that person be treated, 8 should they be given a preference? What are we trying to 9 achieve in our society as people with disabilities? 10 A. I guess just equalization. 11 Q. The same opportunity as everybody else? 12 A. Yes. 13 Q. So you don't -- so you get to work? 14 A. Exactly. 15 Q. If you're disabled in your ability to move around, you 16 can get into the building, of course, and do the job. 17 Ms. Reber, prejudices, things that people can be 18 prejudiced about? 19 A. I think about education. 20 Q. And will you explain what you mean? 21 A. Well, there are people who have a higher education, 22 like in the workplace, they get the better job even though 23 someone maybe can do the same work, but they didn't have as 24 much education so the other person gets it, gets the job. 25 Q. Exactly. Now, that's -- let me ask this: Some people, VOIR DIRE OF THE JURY 28 1 though -- should a person who can do the job better not get it 2 because they have more education? 3 A. Could you repeat that? 4 Q. Should a person who can do the job better not get that 5 job because somebody perceives them as having more education 6 and they don't like that? 7 A. Well, I think whoever is capable of doing the job 8 should get it. 9 Q. Right. 10 A. Regardless of their education. 11 Q. Right, because to some degree, and I couldn't tell for 12 sure, but with Ms. Foran, it is a little bit of -- if you're 13 qualified, it is an important thing. So it can work both 14 ways. People can -- people can be prejudiced based on your 15 educational status one way or the other? 16 A. Yes, sir. 17 Q. And educational status is another thing that we have to 18 not let prejudice us, educational status. 19 All right. Mr. Miller, there are some things really we 20 haven't mentioned. I'm not sure that they are so critical, 21 but there are plenty of things out there, biases and 22 prejudices. 23 A. I was going to say geographic within the same 24 nationality, you know, not -- their having stereotypical views 25 of being from the north, south, whatever. VOIR DIRE OF THE JURY 29 1 Q. Exactly. Geographic preferences. There are a couple 2 of things we have left out, but that can include the way 3 someone speaks, so that if you have a particular accent -- do 4 you ever think people try to say unfavorable things or draw 5 unfavorable conclusions about an individual who might be from 6 the south because of an accent? 7 A. Sure, they may think they're slow or something because 8 they talk slower. 9 Q. Right, that's a prejudice too. 10 Okay. Now, let's hand that to Mr. Russell. 11 Mr. Russell, we have talked about a lot of biases and 12 prejudices, they can be based on all sorts of things, do you 13 think that a jury in west Tennessee other than -- which county 14 are you from? 15 A. Tipton County. 16 Q. How many folks do we have outside of Shelby County? We 17 have got two. Mr. Francis is from Tipton County? 18 A. Tipton County. 19 Q. I'm not -- we have got some other folks. Where are you 20 from? Yes, ma'am. 21 A. Dyer County. 22 Q. Dyer County, that's a long way down here too. I 23 appreciate you being here, that's a long drive. We have got 24 somebody else here. 25 A. Tipton. VOIR DIRE OF THE JURY 30 1 Q. Anybody from Fayette? We usually have Fayette County. 2 We also have Lauderdale County, we have several counties. 3 Mr. Russell, do you think that a jury from this part of 4 west Tennessee can make a decision without being influenced by 5 biases and prejudices? 6 A. Yes, sir. 7 Q. Now, we all know people have them, how do we avoid 8 that, what do we do to avoid being influenced by bias and 9 prejudice? 10 A. I don't know exactly, sir. 11 Q. Well, let me -- that's a fair answer. Let's see what 12 Ms. Fields has to say. Ms. Fields, one, do you think the jury 13 can make a decision free from bias and prejudice? 14 A. Yes, I do, Your Honor. 15 Q. How? 16 A. By being open-minded, as we have talked about, and by 17 being objective and staying focused and being attentive. 18 Q. Okay. All right. Those are good points and, 19 Ms. Farmer, what do you think? Realistically, we live in a 20 society, very complicated society, people bring a lot of 21 baggage with them sometimes to the courtroom. Can a jury 22 realistically make a decision without being influenced by bias 23 and prejudice? 24 A. Yes, by staying specific to the facts. 25 Q. By focusing on the facts. So both of you -- those are VOIR DIRE OF THE JURY 31 1 good points. 2 Mr. Fowler, what do you think? Do you think these 3 folks are dreaming or are they right? 4 A. I don't know if this has been answered or not, but I 5 think if you were lucky enough to get people that have 6 traveled and dealt with different nationalities, you would get 7 that open-mindedness and whatnot that you're looking for. 8 Q. You're a little concerned that personal experience -- 9 lack of personal experience can be -- could be a problem? 10 A. Right. 11 Q. Okay. Let's say that somebody on the panel said 12 something that appeared to be using bias and prejudice in 13 making a decision. I mean you could say, well, these people 14 don't speak English, I'm not going to decide for them, period, 15 now, what would you say to that person? We all know that is 16 wrong, but sometimes people have problems. How would you deal 17 with that? 18 A. I think that individual would have to explain that to 19 me a little bit better than that, me personally. 20 Q. You would ask them to think about it? 21 A. Oh, yes, without a doubt. 22 Q. Okay. 23 A. Last time I was here, I learned about preponderance of 24 the law. 25 Q. Preponderance of the evidence, exactly. But you would VOIR DIRE OF THE JURY 32 1 ask them to -- well, let's ask -- let's ask Mr. Francis, do 2 you think that a jury can realistically be expected -- you 3 know, drawn from this jury pool can realistically be expected 4 to try this case without being influenced by biases and 5 prejudices? 6 A. I think, like you say everybody has baggage, they have 7 their own biases and prejudices, if not from experience, then 8 just living in your life, and most of the time, that is what 9 helps you dispel some of the bad stereotypes when you have 10 been there and done that. So that baggage right there is what 11 is going to help you overcome your prejudices; and I think all 12 of us here can do it. 13 Q. And what would you do if somebody expressed a clearly 14 unconstitutional basis for making a decision? It is an 15 illegal thing, it is illegal to decide this case, it is 16 unconstitutional to decide this case based on national origin 17 or race or gender or religion, that's unconstitutional. So 18 what are you going to say to that person if they made a 19 statement that -- 20 A. I would have to call them on it, or her. 21 Q. How do you do it diplomatically enough so that you 22 don't get into a fight? 23 A. Well, you try to explain your side of it so you could 24 try to quash the notion of prejudice or try to keep them 25 open-minded, give them the -- VOIR DIRE OF THE JURY 33 1 Q. Okay. You try -- you were going to redirect the 2 discussion? 3 A. Right. 4 Q. Okay. 5 A. Into a healthier more appropriate conversation. 6 Q. And hopefully, it won't happen, but we always have to 7 be concerned. 8 Let me ask Ms. Ragsdale, you heard a bunch of people 9 talk about this, do you think that the jury -- a jury can make 10 a decision free from bias and prejudice? 11 A. Yes, I can. You have to listen, really listen and stay 12 focused and listen to the facts and don't let personal 13 experience or prejudice influence you, you have got to deal 14 with the facts. 15 Q. Just bring them back to the facts, let's not talk about 16 the -- okay. 17 A. Uh-huh. 18 Q. Ms. Foran, you have dealt a little bit with some of 19 these types of issues. Do you think that a jury can 20 realistically be expected to decide the case free from bias 21 and prejudice? 22 A. I do, and I'm like what most people have said that if 23 you concentrate solely on what has been said and shown in the 24 courtroom, then you should be able to come to a decision 25 without prejudice. VOIR DIRE OF THE JURY 34 1 Q. Focus on the evidence, okay. Absolutely. I want to 2 really ask Ms. Reed -- I'm going so ask everybody this 3 question, because it is a big deal, and -- it is a big deal. 4 Is it -- do you think a jury -- in your heart of hearts, do 5 you think a jury realistically will make a decision free from 6 bias and prejudice, do you think that is really going to 7 happen? 8 A. When you say is it really going to happen, you mean 9 with this particular -- 10 Q. Well, we're not going to get any other jury -- you 11 know, we're all citizens and it has got -- it is going to come 12 from the group of people in this room. 13 A. I think if you get the right jury, you know, and that's 14 why you asked the questions to try to see if the person would 15 have any biases, but like you said, if -- if the people stick 16 to the facts and do what -- you know, what is being discussed 17 within the case, then a juror should be able to. 18 Q. Okay. Magic words for you are stick to the facts? 19 A. Right. 20 Q. Has it been your experience -- I'm going to ask you a 21 little different question, has it been your experience in 22 everyday life in Memphis, Tennessee that people make decisions 23 from bias -- or Tipton County or Lauderdale County or Dyer 24 County, that people every day makes decisions free from bias 25 and prejudice? VOIR DIRE OF THE JURY 35 1 A. No. 2 Q. And so what is going to make this process different? 3 A. Because I think people are probably biased without 4 thinking about it. They just go into their normal everyday, 5 you know, if someone is forcing you to be objective and to 6 stay focused on what is at hand, the facts, I think people 7 will. I think in our everyday life we don't think like that. 8 We may have biases just because that's the way we grew up, you 9 know -- say, for instance, if you see something on the news, 10 you know, sometimes people say, oh, he did it, you know, they 11 don't even know. And I mean -- but when you're in this type 12 of environment, I think people will be more likely to do what 13 they're asked to do because you're asking the person to be 14 objective and to focus on the facts. 15 THE COURT: I think somebody may need a break, 16 that's what I'm beginning to see. We are going to take a 17 break because I can't let -- I have to have everybody 18 here. I can't take a break for one person and not for 19 everybody. Mr. Yeager, when we come back, we will start 20 with you on the questions. I have got to tell you seven 21 things before we take a break, I have no choice, and the 22 first thing is that you cannot discuss the case among 23 yourselves. You can't discuss anything about what we have 24 been doing, even if you like it or don't like it, you 25 can't do that because once you start talking about it, it VOIR DIRE OF THE JURY 36 1 starts creating those things we're trying to avoid here, 2 those preconceived notions, those ideas, so you can't talk 3 about it. You can talk about the -- whether you want Bass 4 Pro in the Pyramid or whatever -- whoever is the next 5 candidate, but you cannot talk in any way about this case, 6 don't speculate about what the case is about, don't -- 7 avoid the subject. 8 The second thing is that you cannot talk to 9 anybody else. I said among yourselves you can't talk, but 10 you can't call somebody and say -- you can say I'm going 11 to be in jury selection today, we should finish jury 12 selection and I will know if I'm going to be on the jury 13 today, but you can't tell them anything about the case. 14 They will say what's the case about, and you're going to 15 say I can't -- you don't know and I can't tell you. 16 The third thing is that you can't even speak to 17 the lawyers or the parties or the people who are here, 18 there are a whole bunch of people here, that shouldn't 19 influence you at all, but you can't talk to them. You 20 can't go over and talk to them and say what are you doing 21 here today. Don't do that. One, they can't tell you, 22 they have been instructed not to talk to you. You can't 23 even speak to the interpreters because they're obligated 24 to not speak to you. You can't say how do you do this, 25 you know, this is really interesting. It is interesting, VOIR DIRE OF THE JURY 37 1 but you can't ask them, you can't speak to them. So that 2 tells you -- and if you do speak to one of these folks, 3 they're not going speak to you and they're going to look 4 down and look embarrassed, and it really makes everybody 5 really uncomfortable, so don't speak to them. 6 The fourth thing is if somebody should try to 7 talk to you about the case, you should report that 8 immediately to one of our court security officers. We 9 have got two in the courtroom right now, and a lot -- they 10 are men and women with the blue jackets, badges on, or a 11 member of my staff or me and tell them that somebody tried 12 to talk to you about the case, and they need to tell me. 13 The fifth thing is you're probably getting 14 curious about the case. You cannot try to research it or 15 make any inquiry at all about it. That is important 16 nowadays because with computers, you can find almost 17 anything out if you try to, and I'm just going to tell you 18 don't do that. Avoid things like that. 19 The sixth thing is right now you haven't had a 20 chance to, but if there's anything in the newspaper, 21 television or radio about this case, you cannot read it or 22 listen to it or watch it. So be mindful that if there's 23 any media coverage, you cannot listen to it. If something 24 inadvertently happens and you don't mean to -- and it does 25 happen and you see something happen, hear something, just VOIR DIRE OF THE JURY 38 1 tell us about it, it is probably not a problem, but we 2 have to know that that occurred. 3 The seventh thing is you have to keep an open 4 mind. As most of you said through this process, you have 5 to keep an open mind for a long time until all the 6 evidence is submitted, until the final arguments of 7 counsel, until the final instructions on the law and until 8 you have gone to the jury room and discussed the evidence 9 among yourselves, which will take place some time from 10 now. We will talk about that time period when you come 11 back. So those are the instructions. So don't talk to 12 anybody about the case. That's the bottom line. 13 Now, because there's so many of you, we're 14 going to take a 20-minute break, because you won't have a 15 chance to go to the restrooms. I will make the 16 restrooms -- to this jury room open to the parties and the 17 lawyers, if that is enough, so we have got a little more 18 restroom space. Mr. Ruby, we will make sure those are 19 open to them. 20 Ladies and gentlemen, when you come back, all 21 of you in the jury box should resume the same seat. All 22 of you should come back, obviously, to the same side of 23 the courtroom, and we will see you in 20 minutes. My 24 watch says that it is 10:33, and Mr. Yeager said to be 25 prompt, so you should be back at 10:53, Mr. Yeager. We VOIR DIRE OF THE JURY 39 1 will see you at that time. See you in 20 minutes. Thanks 2 very much. 3 THE CLERK: All rise. This honorable court 4 stands in recess. 5 (Recess taken at 10:33 until 10:53 a.m.) 6 THE COURT: I think I need to thank Mr. Yeager, 7 because I have never had a group act so promptly, really, 8 I do appreciate that. 9 Mr. Yeager, we were to you, which was -- you 10 have got the microphone. 11 THE CLERK: They wanted to have a side bar real 12 quick when you get a chance. 13 THE COURT: Oh, I didn't know. Come around to 14 side bar. 15 (The following proceedings had at side-bar 16 bench.) 17 MS. BLUM: Your Honor, one of the jurors, 18 Barbara Fulgham, her daughter is very, very close friends 19 with one of the counsel from Bass Berry who is working as 20 an associate on the case. We just wanted to inform you. 21 THE COURT: Does she know anything about it? 22 This is a daughter? 23 MR. ESQUIVEL: Her daughter and Jennifer Eberly 24 who is an associate in the Memphis office are close 25 friends, have talked about this case, so I just wanted to VOIR DIRE OF THE JURY 40 1 make the court aware. 2 THE COURT: Sure. 3 (The following proceedings were had in open 4 court.) 5 THE COURT: Ms. Fulgham, if you would come 6 around, please. That's fine. 7 (The following proceedings had at side-bar 8 bench.) 9 BY THE COURT: 10 Q. Do you know any of the attorneys that are involved in 11 the case at all? 12 A. No. 13 Q. Okay. Do you have -- 14 A. My daughter is an assistant DA. 15 Q. Oh, where is she? 16 A. For Shelby County. 17 Q. Okay. And I didn't know if you -- well, I mean I take 18 it your daughter lives -- she is married and lives away from 19 home now? 20 A. No, she lives at my house. 21 Q. That's the reason I'm asking, is this -- if this comes 22 up, you understand you will not be able to tell your daughter 23 anything about it. She is a lawyer, you got a problem -- 24 A. Right. 25 Q. -- and that would be an issue. I thought she was an VOIR DIRE OF THE JURY 41 1 attorney. How old has she been an assistant DA? 2 A. She has been there, what, four years, five years. 3 Q. Okay. All right. Now, do you know if she knows any of 4 the attorneys or parties in the case, if your daughter does? 5 A. I think she does. 6 Q. Who do you think she knows? 7 A. I think a friend, her name is Jennifer. 8 Q. Okay. And how does she know her? 9 A. I don't know. I think friends maybe in school or just 10 attorneys, I'm not sure. I don't know her. 11 Q. How do you know that she is aware of Jennifer? 12 A. She mentioned that they were going to do something the 13 other day, but she couldn't, because she was involved in a 14 trial. 15 Q. Okay. I'm sorry, I didn't quite understand that. She 16 mentioned -- tell me who she is, your daughter? 17 A. My daughter, I'm sorry. 18 Q. And she mentioned to you what, she needed to tell you 19 about? 20 A. Nothing about the case, of course. I don't know that 21 she knows. That she and her friend were going to do something 22 this weekend. 23 Q. With who? 24 A. With her friend. 25 Q. Jennifer? VOIR DIRE OF THE JURY 42 1 A. Uh-huh. And that she couldn't because it was some kind 2 of case. 3 Q. Some kind of case? 4 A. That's all I really know. 5 Q. Do you know what Jennifer's role, if any, is in the 6 case? 7 A. No. 8 Q. Would you know Jennifer if she walked in the courtroom? 9 A. No. 10 Q. Never met her at all? 11 A. No. 12 THE COURT: Any other questions? 13 BY THE COURT: 14 Q. Now, is this going to affect you at all? Are you going 15 to be thinking you ought to help somebody out because they 16 might have some connection with a party in the case? 17 A. No. 18 Q. Do you know which side she would be on in the case? 19 A. I don't think so. 20 Q. Do you know which side Jennifer would be on in the 21 case? 22 A. No. 23 Q. You promise you won't try to find out? 24 A. Yes. My only personal thing is if, you know, I'm a 25 cancer patient. VOIR DIRE OF THE JURY 43 1 Q. Yes, ma'am. 2 A. And November 11th is my six month checkup, and my only 3 concern is -- 4 Q. We will not be in court on the 11th, it is a federal 5 holiday. 6 A. So that would be my only concern. 7 Q. That's a federal holiday. I appreciate you reminding 8 me. 9 A. Okay. But I don't know anything. 10 Q. You have been feeling okay? 11 A. Yes, I have. Yes, I have. 12 Q. Are you taking a lot of medicine now? 13 A. No, no, three and a half years. 14 Q. You finished everything? 15 A. Yes, I'm doing great. Thank you. 16 Q. Well, I appreciate that. 17 A. Okay. 18 Q. But if for some reason somebody in the family, your 19 daughter, because she is still living at home says something 20 to you about it and you become concerned that it might create 21 an issue, will you -- and hopefully she won't, she probably 22 knows that she shouldn't say anything. 23 A. She should know. 24 Q. Would you immediately, one, tell her that you can't 25 talk about it, but, secondly, you need to tell us -- we know VOIR DIRE OF THE JURY 44 1 that she won't be doing anything intentionally or 2 inappropriate, I understand that. 3 A. Right. 4 Q. But the lawyers are entitled to know if there is an 5 issue that might come up. 6 A. I understand. 7 THE COURT: Any questions from anybody in that 8 regard? 9 MR. BROOKE: Did you discuss your questionnaire 10 with your daughter? 11 BY THE COURT: 12 Q. Did you discuss the questionnaire with your daughter? 13 A. I only mentioned that it -- one of the questions was 14 had you seen the movie, and I think I put no, and I think I 15 have. I just don't remember it. There was something about 16 the movie, either I put I had seen it or I hadn't seen it; and 17 I think I was wrong in my answer. 18 Q. But you don't have a real recollection of the film? 19 A. No, I just remember James Woods, and that's all I 20 remember. I don't remember what it was about, I'm sorry. 21 THE COURT: Any questions from counsel for 22 either side? 23 MR. ESQUIVEL: No. Thank you. 24 MR. FARGARSON: No. 25 MS. BLUM: Thank you very much, Your Honor. VOIR DIRE OF THE JURY 45 1 THE COURT: Thanks very much. Thank you. 2 (The following proceedings were had in open 3 court.) 4 BY THE COURT: 5 Q. Mr. Yeager, we had that long discussion or somewhat 6 long discussion with everybody else about whether or not each 7 person thinks that a jury, not just any abstract jury, we're 8 going to have a jury from the individuals in this room, if the 9 jury can decide a case free from any bias or prejudice, that 10 is avoiding any bias or prejudice, is that a realistic 11 assessment that they can or unrealistic assessment, what do 12 you think, what is your response? 13 A. I think it can as long as people are -- remain 14 attentive and honest and stick to the facts. 15 Q. Okay. Now, let me ask Ms. Hebron -- is it Hebron? How 16 do you pronounce your name? 17 A. It's spelled wrong, but it is supposed to be Hebron. 18 Q. It is spelled wrong on my list, you're right, it is 19 spelled wrong. It is H-E? 20 A. H-E-B-R-O-N. 21 Q. And I have got the long letter in here, it is making it 22 hard for me to get the name right. 23 Ms. Hebron, do you think it is realistic -- you're the 24 youngest potential member of the panel. And some -- you know, 25 you may have a different perspective on this, do you think it VOIR DIRE OF THE JURY 46 1 is realistic for people to say they can decide this case free 2 from bias and prejudice, do you think that is realistic or not 3 realistic? 4 A. I think it is realistic, and as he just said honesty 5 and be attentive on the situation. 6 Q. You know, I asked -- and I should have asked Mr. Yeager 7 this, and I may. Is it your -- has it been your experience in 8 people's day-to-day lives that people let biases and 9 prejudices influence their decisions? 10 A. In some situations, I have seen it happen. 11 Q. And you told us about one of those? 12 A. Right. 13 Q. Let me ask Mr. Yeager that, because I meant to ask him 14 that. What is your experience in people's day-to-day 15 decisions? 16 A. I have seen it. 17 Q. Okay. And how does that make you respond or feel? Not 18 that -- I don't know if you can respond much, but how does it 19 make you feel? 20 A. I wish people would not do that, and my own kids were 21 guilty of doing it, and I would talk and discuss it with them 22 to try to eliminate it in the future. 23 Q. So when you can do something, you try to do something? 24 A. Absolutely. 25 Q. Let's go to Ms. Richardson, Ms. Richardson, it is a VOIR DIRE OF THE JURY 47 1 serious question really, do you think that the jury can 2 realistically be expected, that is can really make a decision 3 free from bias and prejudice? 4 A. I think they can. If they accept the charge at hand 5 and stick to the facts and the evidence and weed out all the 6 drama and the flamboyancy that may happen in the court, I 7 think they can. 8 Q. Sticking to the facts? 9 A. Sticking to the facts. 10 Q. What if the law is something -- there can be prejudice 11 based on facts. There can also be preconceived notions about 12 the law. Sometimes people think that the law to be X or Y or 13 Z, it turns out to be something a little different. Now, it 14 is the law adopted by the United States Congress, and usually 15 over a substantial period of time, it is not something that 16 just occurs, but do you think that jurors will apply the law 17 or will they be inclined to apply their own concept of what 18 they ought to do? 19 A. Well, they should apply the law because if you're going 20 to continue that train of being impartial, you have got to 21 apply the law and leave out the prejudices. 22 Q. All right. And you think people can do that? 23 A. I think they can. 24 Q. Your experience in life, in people's personal 25 decisions, have you seen situations where people have let bias VOIR DIRE OF THE JURY 48 1 and prejudice influence their decisions? 2 A. I have seen that. 3 Q. Okay. How do you try to deal with that? 4 A. Well, you try to be as fair as you can. I have been an 5 administrator, so I have seen it done, you know. You try to 6 stick to what you need to have done and just try to be as fair 7 as fair. 8 Q. And you're a -- are you a teacher or administrator 9 still? 10 A. Well, now, I'm retired as an administrative teacher 11 now. In my current position, I'm in another county in 12 Mississippi. 13 Q. Right, right. 14 A. And there are prejudices there. When I got hired, I 15 said, well, you know, they don't like people from Memphis to 16 come here to this location, so I have to work with that and 17 deal with that, you know, to try to let them know that I'm not 18 that person that you think that I am. 19 Q. So you're actually dealing with that sort of 20 geographic -- 21 A. Exactly. 22 Q. -- problem that I was going to say Mr. Miller said, but 23 I may have the wrong one. 24 A. The gentleman on the end. 25 Q. Mr. Miller. And you actually have to deal with that? VOIR DIRE OF THE JURY 49 1 A. Exactly. 2 Q. How do you feel when -- how did you feel when people 3 tried to treat you differently because you were from Memphis 4 and you were going somewhere else, how did that make you 5 personally feel? 6 A. Well, the kind of person I am, it doesn't make me -- I 7 mean I'm just a person, I'm going to get to know you and you 8 are going to get to know me, so, you know, I just work with 9 it, deal with it. 10 Q. It worked out? 11 A. It worked out. 12 Q. Let's ask Ms. Fulgham, do you think that a jury can 13 realistically make a decision free from bias and prejudice? 14 A. I think they can. I think they can. 15 Q. How? 16 A. You know, one thing that strikes me when we get in 17 here, the atmosphere, it is very sobering, it is just 18 different than you see on TV, in the movies when you yourself 19 are experiencing it. And I just think the process -- I do 20 think that a jury can be fair and impartial. 21 Q. Has it been your experience in personal life that 22 sometimes there have been -- you have experienced or seen 23 incidences where people have let bias and prejudice affect 24 them? 25 A. I'm sure that I have. I'm sure that I have. VOIR DIRE OF THE JURY 50 1 Q. And you have seen that on occasion? 2 A. Yes, I have. Yes, I have. 3 Q. How does that make you feel? 4 A. Oh, sometimes sad, you know, that you can't be a little 5 more open-minded, a little more forgiving, a little more 6 understanding, but I think everybody, for the most part, tries 7 to do the best they can. 8 Q. Ms. Reber, you know, I shouldn't do this, I asked who 9 the youngest one was, but I didn't ask the most senior. 10 Anybody on the panel over 60? My goodness, we have got 11 several. Anybody over 65? We have got at least two. Well, 12 anybody ever treat you differently because of age? I will 13 just ask Ms. Reber because she has got the mic. You feel 14 like -- maybe preferably or maybe more favorably, but is age 15 ever a factor that you have experienced? 16 A. Well, no, not really. I haven't, I don't think, ever 17 been looked down upon or looked up at because of my age. I 18 have seen people driving cars, you know, that maybe do 19 something dumb and they think, well, that old person shouldn't 20 even be driving, but that's true of the young kids just 21 starting out too. 22 Q. That fits both ways? 23 A. Uh-huh. 24 Q. Do you think that a jury can realistically make a 25 decision free from bias and prejudice? VOIR DIRE OF THE JURY 51 1 A. I really think they can if they concentrate on what 2 they're doing and what is being said, the facts. 3 Q. What about the issue of if somebody feels like they 4 don't want to follow a particular law, that's always a risk, 5 somebody will say, well, I want to do it -- what I think is 6 the way I should do it and not follow the law, is that -- does 7 that equate to you as the type of preconceived notion -- how 8 do you deal with that? 9 A. Well, I think if the law says something has to be done 10 this way, then you really don't have a choice, you do have to 11 do it like the law says. 12 Q. Otherwise, we're not playing -- 13 A. Why even have the law? 14 Q. Right. Ever had a situation where you felt like bias 15 and prejudice played a role in something that you saw happen 16 or -- 17 A. Well, you know, in everyday life, you see things 18 happen. You don't necessarily remember them, you think about 19 at the time and then you just go on with your life. Because 20 it doesn't concern you, you just can't worry about everything. 21 Q. How does it make you feel, though, when it happens, how 22 does it make you feel? 23 A. Well, it's not fair. 24 Q. Okay. Well, let's ask Mr. Miller a couple of 25 questions. Mr. Miller, do you think the jury can VOIR DIRE OF THE JURY 52 1 realistically make a decision free from bias and prejudice? 2 A. I think they can if they take the duty seriously and 3 apply the law and pay attention to the facts and judge it on 4 the facts. 5 Q. How do you think that that will happen or can happen, 6 what has to happen in order for it to be free from bias and 7 prejudice? 8 A. I mean you have to -- you have to take all the 9 characteristics that we talked about earlier and make sure, 10 you know, that you're doing those things when you're doing 11 your duty as a juror. 12 Q. And confine your decision to the facts that are placed 13 in evidence and not these prejudices, biases and speculations 14 that sometimes people get confused and might try to use? 15 A. Yes, sir. 16 Q. In your business, you try to make your decision based 17 on what? 18 A. Character is a big part of, you know, my business. 19 Q. Because you're a banker? 20 A. Yes, sir. 21 Q. Okay. And when you get a financial statement, I assume 22 that is important? 23 A. Yes. 24 Q. So it is basically a -- hopefully, it is a fact driven 25 process? VOIR DIRE OF THE JURY 53 1 A. Yes, sir. 2 Q. Okay. Are those analytical skills -- everybody will 3 have to use those type of analytical skills in this process, 4 so is that a problem that you will be precluded from using 5 subjective things like assumptions based on any of these 6 characteristics or prejudices? In other words, you said 7 character there, and I'm trying to figure out what you mean 8 because sometimes people -- 9 A. Well, you have to look at -- you have to look at the 10 facts in what I do, but you also have -- I mean it also -- you 11 know, I guess the facts are, you know, can you pay me back, 12 the character is really paying me back. 13 Q. Is the person committed to paying you back? 14 A. Yes, sir. 15 Q. Okay. One thing that has to be a concern would be 16 someone assessing it and saying I like so and so or I think 17 he's a person of good character and, therefore, I'm going to 18 decide for him. Generally, in matters in court, vouching for 19 somebody, saying he's a good guy or a good female or however, 20 good teacher, whatever, all the things that we might use is 21 not the way we make the decision because we're not here to 22 decide fundamental things like are you inherently a good 23 person or not a good person, we don't decide that. We have to 24 make a decision based on facts. I'm a little concerned about 25 the idea of how would you assess character in a situation VOIR DIRE OF THE JURY 54 1 where you don't know the people. 2 A. It's hard to assess, you have to go on what you have, 3 and I guess that's basically the facts. 4 Q. Because in this case, you're not going to get a chance 5 to go shake hands with them and sit down and drink a cup of 6 coffee with them because you can't do that. So can you in 7 this case confine your decision making process to an analysis 8 of the evidence that is presented to you in this case and then 9 apply the law to that; is that a satisfactory decision model? 10 A. Yes. 11 Q. Okay. Can you do that in this case? 12 A. Yes. 13 Q. Okay. I'm not sure, did I ask have you ever had a 14 situation where you felt like someone around you made a 15 decision where you were treated differently, someone made a 16 decision in which bias and prejudice placed a role? 17 A. Sure. 18 Q. How does that make you feel? 19 A. Not good. I mean it makes you want to either do what 20 you can to change it or make sure you do what you can in the 21 future to avoid that behavior. 22 Q. Okay. All right. Mr. Russell, we're going to go 23 through an exercise here, I need to ask you to do something 24 for me. I want you to look out there at the people on this 25 side -- at the table, there are lots of people. 1, 2, 3, 4, VOIR DIRE OF THE JURY 55 1 5, 6, 7, 8, 9, 10, 11 -- at least 11 folks at the table, I 2 might have miscounted. I would like for you to look out there 3 and I would like you to tell me who you think is the lawyer 4 for the party bringing the claim, the lawyer for the party 5 bringing claim. I'm going to ask you to do this -- I'm going 6 to ask you to do that, the lawyer for the party bringing the 7 claim, you got your choice of 11 -- of 11 people, and then 8 take a look around, make sure you look at everybody real 9 carefully. 10 A. I would say number three. 11 Q. Number three. Which one is number three? 12 A. One, two, three. 13 Q. Number three, stand up. Number three. The lawyer for 14 the party bringing the claim, okay. Party bringing claim, 15 lawyer. 16 All right. Let's hand that to Ms. Fields, and I know 17 it is -- I'm going to ask you to pick out -- it could be 18 anybody, we're not saying it is the right -- it could be the 19 same person or it could be somebody else. The lawyer for the 20 party defending the claim, the lawyer for the party defending 21 the claim. 22 A. The gentleman right here from my -- number three on the 23 other side. 24 Q. Another number three, we have got a number three. 25 Now, Ms. Farmer, I'm going to ask you to pick out a VOIR DIRE OF THE JURY 56 1 person who is -- I'm going to tell you that -- you didn't know 2 anything -- do you know what kind of case it is, civil, 3 criminal anything about it? So they made it without knowing 4 it. I'm going to tell you that it is a civil case, so there 5 is somebody or there are a group of people who may be 6 plaintiffs in the case, there is somebody, a group of people 7 who may be defendants in the case. I'm going to ask you to 8 pick out a person who is a plaintiff in the case. Look 9 around. A person who is a plaintiff in the case. It could be 10 anybody from starting over here to my far right all the way 11 around to -- past the lady with the little -- lighter hair 12 there. A person who is a plaintiff in the case. 13 A. I would say that gentleman with the blue tie straight 14 ahead from me. White hair. 15 Q. Which one? 16 A. Number two. 17 Q. Number two. Number two. That's the person bringing 18 the case. 19 Now, don't be misled, it is kind of like that show on 20 TV where they used to stand up and bop down, that's designed 21 to sort of give you a little bit -- okay. He's supposed to be 22 a person bringing the case, a plaintiff. 23 Let's pick out somebody, Mr. Fowler, who is a 24 defendant, one of the people who are or may be a defendant in 25 the case. Civil case, defendant, pick out somebody who looks VOIR DIRE OF THE JURY 57 1 like a defendant or might be a defendant. 2 A. I say one of the two gentleman sitting right here. 3 Q. Now, you got to tell me -- describe the shirt. 4 A. The khaki colored shirt. 5 Q. Khaki shirt. Stand up, khaki shirt, defendant. All 6 right. We're going to see how you guys did. 7 All right. Thank you very much. I appreciate it. 8 Now -- well, you picked out the man in the blue tie 9 over there as a person bringing the case. He's probably 10 relieved to know that, but he's actually a defense attorney. 11 Didn't get that one right. That's Mr. Fargarson. Mr. 12 Fargarson, thanks very much. 13 A. You want to know what my other choice was? 14 Q. So we can -- that's one wrong, one wrong, one wrong, 15 okay. That's wrong. One wrong. Okay. 16 Now, as to the defendant, well, let's see, I think you 17 picked out -- well, Mr. Carranza, would you stand up? 18 Mr. Carranza is the defendant in the case. And so you picked 19 out -- that's wrong too, the second one was wrong. You picked 20 out a plaintiff in the case. 21 And would you stand up and tell us your name, please? 22 I will let counsel introduce him. 23 MR. ESQUIVEL: Your Honor, this is Francisco 24 Calderon, one of the plaintiffs. 25 THE COURT: Exactly. Thank you very much. VOIR DIRE OF THE JURY 58 1 He's a plaintiff in the case. 2 BY THE COURT: 3 Q. All right. So far we have got two wrong out of two. 4 Now, let's go to the -- they did better on the rest of 5 it. Let's see. How many of the people at the table are 6 attorneys who represent a plaintiff in the case, a party 7 bringing the claim? And they got one of them right. They did 8 get an attorney, but there are actually three attorneys 9 representing them. I will let them stand and introduce 10 themselves. 11 MR. EISENBRANDT: Pat Eisenbrandt, Your Honor. 12 MS. BLUM: Carolyn Blum, Your Honor. 13 MR. ESQUIVEL: David Esquivel. 14 THE COURT: Mr. Esquivel. Thank you very much. 15 BY THE COURT: 16 Q. So we have got one, but there's some other folks out 17 there. And I'm going to have -- Mr. Fargarson, will you 18 introduce the attorneys in this case because they didn't get 19 the lead counsel, did they? 20 MR. FARGARSON: No. 21 I'm Bob Fargarson. This is Bruce Brooke. 22 BY THE COURT: 23 Q. But you did get Mr. Brooke. At the most, we got 24 50 percent. 25 Now, let's talk about what we just did, we went through VOIR DIRE OF THE JURY 59 1 that exercise. Out of 50 percent success rate, what was 2 wrong -- and I do appreciate all four of you doing that, you 3 were very good sports about it, and I do appreciate that, very 4 important to do this exercise. 5 Well, Mr. Francis, what did we learn from that 6 exercise? 7 A. Preconceived notions are not always right. 8 Q. Right, right, exactly. And we did -- they did the best 9 they could, but they had an invalid piece of data to work 10 with. What were they going on? 11 A. Mostly the plaintiff's -- excuse me, all the 12 gentlemen's attire. 13 Q. I don't know what went on, but I'm going to guess 14 attire was part of it, and that's not a good basis, 15 appearance. We had appearance, people told us about 16 appearance earlier, so preconceived -- those guessing -- well, 17 let's see what Ms. Ragsdale -- Ms. Ragsdale, there are a 18 couple of lessons from this exercise, what is the lesson that 19 you take from this exercise? 20 A. Preconceived notions. I thought this man on the end 21 was a lawyer. 22 Q. Exactly, exactly. 23 A. I didn't think he was a plaintiff. 24 Q. Exactly. And he's a defendant. You thought the 25 defendant was an attorney? VOIR DIRE OF THE JURY 60 1 A. Uh-huh. 2 Q. And it turns out he's a defendant. You know, 3 appearance can be confusing, and it is just not a valid 4 mechanism. Anything else, any other reason from that -- there 5 are a couple of lessons, I think. What was wrong with our 6 analytical method? And let's ask Ms. Foran, what is wrong 7 with that analytical method? 8 A. Well, judging based on appearance, that's really the 9 only -- the first thing that I was thinking of. I don't -- if 10 there is something else that you are wanting me to say, I'm 11 not sure. 12 Q. No, exactly, exactly, you're exactly right, it is that 13 judgments based on appearance, just like y'all told me before, 14 are inherently invalid. It just doesn't work. You know, 15 that's the reason I asked Mr. Miller those character questions 16 a minute ago is because we have to be so careful about 17 confusing these superficial things with real information. 18 Good point. 19 I mean what is another way to put that, Ms. Reed, as 20 sort of a phrase sometimes people use, somebody will get this 21 phrase eventually, what do we learn from that exercise just 22 based on appearance, what is wrong with that? 23 A. Can't judge a book by its cover. 24 Q. Don't judge a book by its cover. Great. First time, 25 that's great. Usually I have to ask two or three people, I VOIR DIRE OF THE JURY 61 1 appreciate that. Don't judge a book by its cover. 2 Mr. Yeager, tell me what you thought -- was that a 3 useful exercise to go through? Some people don't like it, 4 sometimes people do. We do it every time. 5 A. I thought they were -- it was pure guesswork. 6 Q. And that's -- exactly, it is guesswork, and they knew 7 that, our four panelists knew that. They probably said, 8 Judge, I don't want to do this, but you're the judge, I have 9 got to do it, and I appreciate that. Guesswork, a poor method 10 to use for making any decision. Great point. 11 Okay. Ms. Hebron, was that exercise useful to you? Is 12 that a useful way to think about these things? 13 A. Yeah, because I kind of thought that -- I don't know 14 what I was going to say. 15 Q. Well, let me ask this: Do you find that people do 16 judge you or your friends sometimes based on appearance too? 17 A. Yes. 18 Q. Okay. Now, do you ever feel -- do you think that is 19 ever a valid way to make an important decision? 20 A. It's a very valid way to make an important decision. 21 Q. It is important? Their appearance? 22 A. Their appearance? 23 Q. Right. 24 A. No, it's -- it's not important, their appearance is not 25 important to make a decision on the situation. VOIR DIRE OF THE JURY 62 1 Q. Right. I thought I understood you. 2 A. Yes. 3 Q. It is an invalid way to make a decision, because it 4 just -- it's important -- any important decision based on just 5 appearance would be inherently suspect. 6 Okay. And you said you have experienced sometimes 7 people will do that? 8 A. Right. 9 Q. Okay. Ms. Richardson? 10 A. Yes. 11 Q. You're a teacher, does this work okay, I need your 12 advice? 13 A. This is great. It is a good way to conclude a 14 statement that, you know, don't judge a book by its cover, it 15 is a good way to conclude it. 16 Q. I appreciate that. Since you're a professional, I 17 appreciate that. Thanks very much. Thank you. 18 Ms. Fulgham, what did you think when I asked 19 Mr. Russell to first make that decision, what did you think 20 about that, because people usually have a thought about it? 21 A. Do you mean when you asked him to identify -- 22 Q. Because I asked Mr. Russell and he somewhat 23 reluctantly, but did go ahead and identify somebody. What did 24 you think about that question asked Mr. Russell? 25 A. I think I understood what you were going for. VOIR DIRE OF THE JURY 63 1 Q. Okay. So you thought we were going to make -- it was a 2 point we were trying to make? 3 A. That's right, just more impartiality. 4 Q. What is your observation in everyday life about how 5 important appearance can be in people -- in the decisions 6 people make? 7 A. I really don't understand what you want. 8 Q. Well, if you went -- have you ever gone to a store in 9 very casual clothes and felt you were treated differently than 10 if you were more dressed up? 11 A. Oh, I see. And what do I think of that, do I think 12 that is a fair assessment? 13 Q. In everyday life, does appearance matter? 14 A. To some extent. It shouldn't take you -- you shouldn't 15 take that person wholly on their appearance. 16 Q. Okay. 17 A. I think you do to some extent. 18 Q. The reason I'm asking that is to say we have to not 19 make decisions based on appearance here in the courtroom, but 20 in your daily experience, just like we asked about prejudice 21 playing a role, does sometimes appearance play a role whether 22 we think about it or not? 23 A. I think so. 24 Q. Okay. 25 A. I think so. VOIR DIRE OF THE JURY 64 1 Q. Is that true in your daily experience in some 2 occasions? 3 A. I would think to some extent, I think it is. I think 4 if you're going to church or Sunday school, you dress a little 5 different -- or maybe I'm not answering your question. 6 Q. I think -- 7 A. Have I gone a different way? 8 Q. So in everyday life, sometimes people are influenced by 9 it, but we don't want to do that here, I mean that's the 10 ultimate point? 11 A. That's right, okay. 12 Q. Okay. So I think -- well, I think that Ms. Reber, you 13 understand what I'm getting. There is -- in everyday life, do 14 you think people think it matters? 15 A. I think it makes a difference in the opinion you form 16 of a person. 17 Q. Let me just be real direct here. We have got -- how 18 many men out there have suits on? Just do a quick count. I 19 mean at the table. 20 A. Five. 21 Q. How many men do not have suits on? 22 A. Two. 23 Q. Would you tend to think more of the men who have suits 24 on than the men who don't have suits on, think better of them? 25 A. Well, I think the guys in the suits look like more VOIR DIRE OF THE JURY 65 1 professional people. 2 Q. Okay. And that may be your observation. Now -- and 3 sometimes people think that. Now, in deciding this case, does 4 it have anything to do with how we need to resolve the case? 5 A. No, because that really doesn't have anything to do 6 with the case. 7 Q. Okay. Okay. And I just want to make sure we're all on 8 the same page here. Now, Mr. Miller, in your business, I bet 9 you have to wear a suit every day? 10 A. Yes, Your Honor. 11 Q. You saw the -- do you think it affects -- how are we 12 going to avoid letting that be a subconscious effect in the 13 case, book by its cover, that sort of idea, how are we going 14 to avoid that? 15 A. It all comes back to the facts, that's what you have to 16 decide the case on. I mean everybody naturally makes 17 assumptions about people when you first see them, it's a first 18 impression, but you have to set that aside and just look at 19 the facts. 20 Q. Let me ask you this: If you were in the seat of -- I'm 21 going to pronounce the name wrong, Mr. Alvarado. I would ask 22 Mr. Alvarado if you would stand up just for a moment. If you 23 were in his position and you had heard the questioning that we 24 went through and then you saw his colleague right next to him 25 picked out as a defendant, how would you feel about the jury? VOIR DIRE OF THE JURY 66 1 Thank you. How would you feel about the jury? 2 A. I might be a little unsure, but I mean you have to 3 understand that when you asked these four people, it was a bit 4 unfair because they had zero facts to go on. 5 Q. Exactly. They were great sports, they were great 6 sports about it. But you would feel -- how would you feel? 7 A. I would feel a little uneasy. 8 Q. What would you want to hear from the members of the 9 jury so that you felt that they would be fair to you? 10 A. I guess I just want to hear the, you know, they could 11 put whatever first impressions they have aside and listen to 12 the facts of the case. 13 Q. Okay. Now, let's go back and let Mr. Miller defend 14 himself or Mr. Russell defend himself. I'm sorry, Mr. Miller. 15 Okay, you picked them out, partly, that's hard, and that's a 16 hard situation, you were both asked to do that and I 17 appreciate you being a good sport about it. How would you 18 feel if you were in either of the male defendants' situation 19 and one of your colleagues had been picked out a defendant 20 and, in fact, you're the plaintiff, how would you feel? 21 A. Oh, I don't know exactly what you are getting at. 22 Q. Well, would you be a little concerned that people might 23 not be fair to you because they picked you out as a defendant 24 when, in fact, you were the first person bringing the claim, 25 the plaintiff? They must have thought -- sometimes they VOIR DIRE OF THE JURY 67 1 picked you out as a defendant, it is a civil case, so it is 2 really -- it is just between parties of equal standing in the 3 community, it doesn't matter, but it might cause you a little 4 bit of unease? 5 A. I would feel kind of disappointed, yes, sir. 6 Q. That's what I'm saying. So how do we make sure -- 7 Mr. Miller suggested some things, how do we make sure that 8 everybody is comfortable that the jury will not be influenced 9 by those factors? 10 A. Well, you couldn't judge it on the appearance, I don't 11 guess, of what they wear. 12 Q. Okay. 13 A. Just being honest, I guess. 14 Q. Exactly, you would want to hear that people were not 15 going to judge based on that. 16 Let's ask Ms. Fields, she has been thinking about this, 17 what do you think -- and I appreciate it. You two got them 18 right, so I suppose you're okay, but how would you feel and, 19 secondly, what should -- what would you want to hear from us? 20 A. I would want to hear facts from you before I would make 21 any kind of a decision about anything. 22 Q. You would want to know if it is a fact based decision? 23 A. Right. 24 Q. Ms. Farmer, I'm sorry, you got put in a tough spot 25 here, I appreciate you -- thank goodness, both you didn't get VOIR DIRE OF THE JURY 68 1 them right or I hate to get them all right, it would make me 2 feel terrible, so you did the right thing. The exercise work 3 for you? 4 A. Yes. 5 Q. Okay. And it is a serious question, if you were a 6 plaintiff and somebody identified you as a defendant, and that 7 happened in this case, how -- would you be concerned? 8 A. I think so, yeah. 9 Q. Okay. And what does the -- what does the plaintiff and 10 the defendant need to hear from you to make them all 11 comfortable that we're going to make a decision on the right 12 basis? 13 A. Well, that the facts is really what we're going to have 14 to look at. 15 Q. Okay. We're just -- just the facts? 16 A. Uh-huh, nothing else. 17 Q. Okay. Just the facts. Well, Mr. Fowler, I appreciate 18 you going along with this exercise. Did it work okay? 19 A. Oh, of course, it did. 20 Q. And once again, of course, both of you fortunately went 21 the other way which helped me on this. What do you think that 22 you would want to hear if you were in the position of the 23 plaintiffs and you had been picked out as the defendants, what 24 would you want to hear? 25 A. I'm sorry, let's go with the facts. VOIR DIRE OF THE JURY 69 1 Q. You would say we're going to go with the facts in this 2 case, we're going to go with the facts in the case. Do you 3 think that appearance plays any role in the decision that 4 should be made? 5 A. Oh, absolutely not. 6 Q. Okay. All right. Well, ladies and gentlemen, let me 7 look at one or two more things. I appreciate the discussion, 8 I need to check one thing here. You know, in order for you to 9 answer the next question, and we have gone through the 10 specific -- we have gone through the process that we need to 11 think about, but now you have to have some idea of what the 12 case is about. Now, I'm not going to tell you that this is an 13 exhaustive discussion of what the case is about because it is 14 not. But right now, you don't know anything about the case at 15 all, and in a moment, of course, we will have the lawyers 16 introduce all the parties so that you know who they all are. 17 The style of the case is Ms. Chavez, Santos, Calderon, 18 Francisco -- I'm sorry, Franco, and Alvarado against 19 Mr. Carranza. Now, Mr. Carranza is here on my right and you 20 have seen him. Generally, you need to understand that this is 21 the type of case. The plaintiffs bring this lawsuit for 22 alleged human rights abuses that they assert they suffered in 23 El Salvador in the early 1980s. The plaintiffs claim that the 24 defendant Mr. Carranza, who at that time was, as I understand, 25 a colonel in the Salvadoran military is responsible for VOIR DIRE OF THE JURY 70 1 torture, extrajudicial killing and crimes against humanity 2 based on the law of command responsibility. Three of the 3 plaintiffs allege that their family members were civilians who 4 were killed by members of the Salvadoran military and by 5 groups working together with the Salvadoran military. Two of 6 the plaintiffs allege that they were tortured while in the 7 custody of the Salvadoran military. The plaintiffs seek 8 compensatory damages from the defendant for the alleged 9 physical and emotional pain that they suffered as well as 10 other damages if you determine it appropriate to punish the 11 defendant and attempt to deter any future abuses. 12 Mr. Carranza in this case denies that any of the acts -- that 13 any of the acts caused harm, any of the acts on his part 14 caused harm, injury or death to any of the plaintiffs or their 15 relatives as contended by them in the case. As a matter of 16 fact, it's asserted that the only party who is a plaintiff who 17 is ever seen by the defendant was Daniel Alvarado and that 18 he's the only one who had any actual contact with them. Now, 19 in this case, you will have to decide questions that relate to 20 the application of some laws which are not perhaps as familiar 21 to you as laws such as the Civil Rights Act, which you would 22 be generally familiar with, or acts that affect people against 23 discrimination in the workplace, protect people from physical 24 harm by others in our society and allow the recovery of 25 damages against them. The fact that you will be applying law VOIR DIRE OF THE JURY 71 1 that you do not hear about everyday should not affect in any 2 way how you apply that law. This is a case that is brought 3 pursuant to the Torture Victims Protection Act which was 4 passed by the United States Congress in 1992 and the Alien 5 Tort Claims Act which was passed by the United States Congress 6 in December of 2003. I need to tell you the nature of the 7 claim -- of the claims because I need to know if in this case 8 you can be fair to every one and apply the law in this case 9 fairly and impartially. Now, there are a couple of things 10 there, and we're going to start with Mr. Russell again. 11 Mr. Russell, does the nature of the claim itself, a claim for 12 command responsibility in connection with alleged 13 extrajudicial murder and torture cause you to feel so strongly 14 that you could not be fair to either the plaintiffs in this 15 case or the defendant, Mr. Carranza, in this case? 16 A. No, sir. 17 Q. If, in fact, a plaintiff, one plaintiff, two 18 plaintiffs, three plaintiffs, four plaintiffs or all five 19 prove their case by the greater weight of the evidence, do you 20 understand it would be your responsibility to return a verdict 21 for them against Mr. Carranza? 22 A. Yes, sir. 23 Q. Do you also understand that if the -- a single 24 plaintiff or all the plaintiffs fail to prove their claim or 25 claims, their claims, against Mr. Carranza, failed to prove VOIR DIRE OF THE JURY 72 1 those claims by the greater weight or preponderance of the 2 evidence, you would have to return a verdict for Mr. Carranza? 3 A. Yes, sir. 4 Q. Does the fact that this case involves El Salvador -- 5 now, Mr. Carranza is here in Memphis, in Tennessee now -- but 6 involves El Salvador cause you to treat this case differently 7 than you would treat a case that was from west Tennessee, that 8 originated in west Tennessee? 9 A. I don't know what the rules are in El Salvador, but you 10 would have to go by the facts of the court. 11 Q. And that's a good point. The rules that we apply are 12 the rules in the United States. Those two acts were passed by 13 the United States Congress, and they provide the law that will 14 govern the outcome in this case. You will not be looking at 15 necessarily, maybe to some degree, for controlling information 16 from El Salvador, that is not the law that we will be 17 applying. We will apply the law of the United States, and 18 that's a good point. Can you apply the law in the United 19 States even though these events occurred in El Salvador, can 20 you do that? 21 A. Yes, sir. 22 Q. All right. Ms. Fields? 23 A. Yes, sir. 24 Q. You have heard the name of nature of the claims? 25 A. Yes. VOIR DIRE OF THE JURY 73 1 Q. They are undoubtedly different than you thought they 2 might be? 3 A. Yes. 4 Q. Does the fact that they're different cause you some 5 concern? And you have heard the nature of the claims, does it 6 cause you to automatically tend to side with one side or the 7 other? 8 A. No. 9 Q. Can you give both sides, all sides a fair trial in this 10 case? 11 A. Yes. 12 Q. Can you then apply the law of the United States as it 13 relates to these types of proceedings? 14 A. Yes, I can, Your Honor. 15 Q. Now, let me ask Ms. Farmer, you have heard the nature 16 of the claims in this case? 17 A. Yes, sir. 18 Q. I'm going to tell you that it is not a defense that I 19 wasn't there, and I didn't torture somebody, that's not a 20 defense, this isn't about -- as far as I know, there is not 21 going to be a single piece of evidence that Mr. Carranza was 22 in a room and that he did something to somebody, as far -- I 23 think that's right, make sure we're -- I don't know all the 24 evidence on it, I want to make sure I am right about that. 25 MR. ESQUIVEL: That is right, Your Honor. The VOIR DIRE OF THE JURY 74 1 defendant did have personal interaction with one of the 2 plaintiffs, but the plaintiffs are not alleging that 3 Colonel Carranza pulled the trigger or directly 4 participated in the torture of any of the plaintiffs. 5 BY THE COURT: 6 Q. That's what I understood, but I think it's very 7 important that we be clear on this point. That's not -- this 8 is not about that. This is not a case in which the allegation 9 is that Mr. Carranza was in a room and he did something to 10 somebody in a, you know, a field or anywhere else, that he 11 went into that place and did something or shot somebody, 12 that's not the allegation. This is about the theory of 13 command responsibility, which will be explained more, but when 14 I give you the law on this, and I will tell everybody the law 15 at the appropriate time in the case, but I want to make it 16 clear, are you going to somehow say, well, this is about this 17 issue that it is not about, is that going to be a temptation 18 for you? 19 A. No, I don't think so, no. 20 Q. Okay. You have heard the nature of the claims? 21 A. Yes. 22 Q. Do they upset you to the point that that would cause 23 you to perhaps not be able to be fair to both sides? 24 A. No. 25 Q. Okay. You would maintain your objectivity throughout VOIR DIRE OF THE JURY 75 1 this case to require that the evidence be presented to prove 2 the case by the greater weight or preponderance of the 3 evidence as to each claim brought by the plaintiffs? 4 A. Yes, sir. 5 Q. If the plaintiffs achieve that, will you be willing to 6 return a verdict for the plaintiff? 7 A. Yes, sir. 8 Q. If the plaintiffs fail to do that, if they fail to do 9 that, do you understand your obligation would be to return a 10 verdict for Mr. Carranza? 11 A. Yes, sir. 12 Q. Let me ask Mr. Fowler, is this -- is this a type of 13 case that just reading the nature of the charges would cause 14 you to find it difficult to be fair and impartial? 15 A. I would have to fall back on my old military days, and 16 if you're in charge, you're in charge, and you can't duck that 17 particular obligation, so, yes, I would probably have a hard 18 time with that. 19 Q. In other words, I'm saying -- I think I'm hearing you 20 say that you don't have any problem with the theory of command 21 responsibility, but would it have to be demonstrated to you? 22 A. Absolutely. 23 Q. Okay. And you don't have a problem with the fact that 24 this is not a case about somebody being in a room and doing 25 something themselves personally? VOIR DIRE OF THE JURY 76 1 A. No, I understand that I think the thing is 2 preponderance of the law. 3 Q. Preponderance of the evidence, right. 4 Now, do you have any experience that is going to cause 5 you to -- now that you know the nature of the charge and you 6 do have some background in the military, are you going to be 7 able to decide this case based solely on the evidence that 8 comes in from the witness stand and not based on a 9 preconceived notion? We don't tell people to get rid of their 10 life experiences because that's not what we want, but we want 11 them to make a decision based on the evidence and the law that 12 applies in the case. Can you make your decision based on the 13 evidence and the law that applies in this case, can you do 14 that? 15 A. I can only tell you I will try. I don't really know at 16 this point, to be honest with you. 17 Q. Okay. If at some point during the proceeding it became 18 clear to you that -- and this applies to all of you, that 19 there is something in your background, in your life 20 experiences that is causing you not to be able to decide the 21 case solely on the evidence and the law, your obligation would 22 be at that time to say, Judge, I need to speak to you at side 23 bar, just come around over here and say, you know, I keep 24 thinking about what happened -- it doesn't apply to you guys, 25 what happened to me while I was in Viet Nam and I can't get it VOIR DIRE OF THE JURY 77 1 out of my mind, and it is influencing me in deciding this case 2 because I was in southeast Asia for a year, it could happen, 3 or it could be something else where -- some other personal 4 experience. You would have an obligation to come tell us 5 about it, tell all of us about that, and we will have a couple 6 of extra jurors, if we need them, they're really not extra, 7 you all get to deliberate, but we will have enough so we can 8 take that into consideration. Mr. Fowler, if that happened, 9 if you found you were being influenced by something that you 10 could not put out of your mind, it wasn't evidence in this 11 case, would you come tell me about it? 12 A. I would. I would. 13 Q. Okay. 14 A. And I had three tours in Viet Nam. 15 Q. Were you there in the -- I was there in '69-'70? 16 A. Yes, sir, I was. 17 Q. Yeah, yeah. Well, you know, so it is hard to tell now, 18 and if that comes up, you just let me know and we will take 19 care of it. 20 All right. Mr. Francis? 21 A. Yes, sir. 22 Q. Anything about the allegations in this case that is 23 going to cause you to not be able to hear the case fairly and 24 impartially? 25 A. No, sir, I think I would be able to keep the facts VOIR DIRE OF THE JURY 78 1 straight. 2 Q. Can you apply the law of the United States in this case 3 even though as it was well pointed out by, I think, Ms. Fields 4 that this is -- that this is in El Salvador, a lot of this 5 activity, virtually all of it is in El Salvador? 6 A. That wouldn't stop me from making an unbiased decision. 7 Q. And you would apply the U. S. law as I instruct you?