Villagomez Jury Selection Debate

November 29, 2010

Someone who commented on a previous post asked for a copy of the memorandum issued last week concerning exclusion of family members and the public during the Villagomez-Santos Rydlyme trial jury selection.  Former Lt. Governor Timothy Villagomez, his sister Joaquina Santos and brother-in-law James Santos are appealing their guilty verdict.  All three are serving prison sentences in the mainland.  They are appealing to reverse their conviction on the basis that their constitutional rights were violated because the public was excluded from the jury selection.

Visiting Judge Mark Bennett conducted the evidentiary hearing on November 9 and 10th  in the U.S. District Court of the NMI to settle the record of the trial. The memorandum states that the judge is the "finder of facts" and it will be the U.S. Court of Appeals for the Ninth Circuit that will decide whether or not to proceed with the defendants' appeal.

Here is the 44-page memorandum that was issued on November 24, 2010:



I found this memorandum confusing and ambiguous, perhaps because the question of whether the public was or was not allowed into the courtroom during jury selection depended on the available space rather than a rule or policy not to allow the public to enter. Additionally, it seems that if this was indeed a concern, then the defendants' attorneys would have and should have immediately raised the issue with Judge Munson during the selection of the jury, rather then bring it up only after a guilty verdict was issued.

Some of the interesting points and statements follow:
  • I am satisfied that whatever the applicable burden of proof may be to show what truly occurred in the district court, that burden rests on the defendants here, as they are the parties asserting that the trial record does not disclose that jury selection was, in fact, closed to the public.
  • There were so many prospective jurors that what I have identified as the courtroom foyer was used as a secure jury assembly area from which the public was excluded. Although Chief Judge Munson did not recall whether extra chairs had to be brought into the courtroom to accommodate all of the prospective jurors, see RTTD1 at 41, I can readily find, by overwhelming evidence, that numerous additional chairs had to be brought into the courtroom to accommodate all of the prospective jurors. See, e.g., RTTD1 at 53 (testimony of Deputy Calvert). I also find, by overwhelming evidence, that the prospective jurors at least initially filled the courtroom to capacity, leaving no seats for members of the public. Indeed, there is no possible way that this courtroom would have had room for any members of the public in addition to 91 prospective jurors, with court personnel and defense and prosecution staff, even with extra chairs in all reasonably available spaces.
  • Chief Judge Munson testified, in part, as follows: "I assumed the public was also in the courtroom at all stages. Maybe everybody that wanted to come in, there wasn’t room for, but there was no exclusion of the public [from] the courtroom."
  • Finally, I turn to the questions of whether and why no objection was made at the time to the purported closure of the courtroom to members of the public and family members during jury selection in this case. To be clear, I now believe that it is for the Ninth Circuit Court of Appeals to determine whether or not the out-of-circuit decisions in United States v. Hillsberg, 812 F.2d 328 (7th Cir.), cert. denied, 481 U.S. 1041 (1987), and Anthony v. United States, 667 F.2d 870 (10th Cir. 1981), upon which I had originally relied, stand for the proposition that belated assertion of a claim of closure of the courtroom during jury selection, when the circumstances on which that claim was based were known or should have been known to the appellant at the time of trial, bar supplementation of the record concerning the claim pursuant to Rule 10(e). I also believe that it is for the Ninth Circuit Court of Appeals to decide whether or not to adopt such a rule. Thus, I again confine myself to the role of factfinder, attempting to settle the record as to whether and why no objection was made at the time to the purported closure of the courtroom to members of the public and family members during jury selection in this case.
  • I find that the defendants themselves should have known at the time about the exclusion of family members from the courtroom during jury selection, but I cannot find that the defense attorneys also should have known at the time. It certainly seems likely to me that the defendants complained to their attorneys that their family members were not being allowed to enter the courthouse or the courtroom during jury selection, but no evidence was produced in the Rule 10(e) proceedings that showed they communicated such concerns to their attorneys.

8 comments:

Anonymous said...

Thank you very much Wendy! This clears things up so much compared to the brief press accounts.

You wrote:

I found this memorandum confusing and ambiguous, perhaps because the question of whether the public was or was not allowed into the courtroom during jury selection depended on the available space rather than a rule or policy not to allow the public to enter. Additionally, it seems that if this was indeed a concern, then the defendants' attorneys would have and should have immediately raised the issue with Judge Munson during the selection of the jury, rather then bring it up only after a guilty verdict was issued.

While the memorandum opinion may indeed have been somewhat “confusing and ambiguous,” that is because, unlike most rulings, it does not come to a firm legal conclusion, but simply finds facts for the U.S. Court of Appeals to do with as they will.

The judge does find by any applicable standard of proof borne by the defense (preponderance of the evidence or clear and convincing evidence) that the public was purposely excluded from jury selection, but that it happened inadvertently due to the small size of the courtroom, large jury venire, and USMS informal policy of not letting members of the public sit in the same row as a prospecive juror.

The two line drawings and five photos scattered throughout the opinion give a real perspective of that courtroom. I wonder who authorized someone from the Clerk's office to take those three pictures during trial?

The judge points out alternatives that could have been used, including “juror” badges, only bringing in some of the jury panel at a time, allowing a separate room for the public to watch remotely, and admitting members of the press.

You are incorrect, though, in writing that “it seems that if this was indeed a concern, then the defendants' attorneys would have and should have immediately raised the issue with Judge Munson during the selection of the jury, rather then bring it up only after a guilty verdict was issued.”

This is because, at the bottom of page 43, the judge found that while the defendants personally knew or should have known of the public's exclusion from jury selection, there is insufficient evidence to conclude that their attorneys did or should have.

Thus, the legal question to be decided by the Ninth Circuit is whether this knowledge by the defendants (but not their lawyers) somehow bars them raising the issue on appeal.

I have no idea; that is why the lawyers and judges get the big bucks. Some relevant legal factors might be whether the inadvertent exclusion of the public from jury selection deprives them of substantial justice and actual prejudice, also whether it constitutes “structural error” mandating reversal.

We will have a better idea upon reading the Appellants' Opening Brief and (optional) Reply Brief, and the Government's Reply Brief -- all available on the Ninth Circuit website.

Thank you again, Wendy, for paying out of your own pocket to PACER to put what should be a public resource online.

Wendy said...

Anonymous 12:33

Thank you for the clarifying comment.

Anonymous said...

In the second substantive paragraph of the first comment above, I mistakenly added the word “purposely,” which was incorrect.

Anonymous said...

I find it curious that defendants put up numerous witnesses, prospective jurors all, who said they all noticed there were no members of the public in the courtroom, but not one of the five defense attorneys noticed. Worst attorneys ever.

Anonymous said...

Defense Attorneys? They did not put up a defense. Why? Because of the entitlements of these defendents they felt that "no jury would convict them". Why bother, after all, what's a little Rydlyme in the family?
They were wrong and now they are DESPERATE to find a way home. I don't blame them. What's next, Satan told me to do it?
Just do your time and stop dragging the NMI through a mess that no amount of Rydlyme will clean up.

Anonymous said...

The judge ignored testimony that didn't fit his pre-determined result. For example, the defense submitted an affidavit from the spouse of one of the attorneys, who claimed she had been excluded from the courtroom, even though she was supposedly a jury selection consultant. Does anyone really think she didn't tell her husband she had been excluded? Does anyone think he wouldn't have noticed the absence of his jury selection consultant during jury selection? The attorneys knew the public was being excluded during juror orientation, and that the public was only allowed in after the orientation as seats became available. They didn't object. They waived the issue, as the Ninth Circuit will conclude.

Anonymous said...

At least the exclusion of Mrs. Quichocho made it into the "settled record," so the USAO will be able to make just such arguments to the Ninth Circuit.

Anonymous said...

The judge also ignores the most obvious explanation for why the none of the defense attorneys objected to the closure--because IT DIDN'T HAPPEN!