Case 3:16-cr-00051-BR
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Jason Patrick, Pro Se c/o Andrew M. Kohlmetz, OSB #955418 Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 Tel: (503) 224-1104 Fax: (503) 224-9417 Email: andy@kshlawyers.com
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA, Plaintiff, vs. JASON PATRICK, Defendant
) Case No. 3:16-CR-00051-BR-09 ) ) ) JOINT STATUS REPORT REGARDING ) PROPOSED JUROR QUESTIONNAIRE ) ) ) ) ) )
Per this Court’s December 12 email directive to the parties, Standby Counsel for Mr. Patrick, Andrew M. Kohlmetz, after conferral with Assistant United States Attorney submits the following Joint Status Report Regarding Proposed Juror Questionnaire. Government Position The government objects to defendants’ questionnaire. It is the government position that a longer, more thorough questionnaire – the version that was already vetted and used at the first trial – would best help the parties identify any potential issues regarding the qualifications of prospective jurors. Additionally, it is the government’s position that the longer questionnaire would streamline the voir dire process by eliminating the need to ask many of the questions captured by the longer questionnaire that are not addressed by defedants’ proposed revisions. JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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Defense Position By its Order of November 21, 2016, the Court gave the parties its directions on submitting a proposed Juror Questionnaire for trial number 2: Finally, the Court directed the parties to submit an updated proposed juror questionnaire no later than 3:00 p.m., December 12, 2016, that includes questions relating to potential jurors' requests to be excused on account of hardship due to the expected duration of the trial and questions relating to potential jurors' exposure to media coverage of the trial that began on September 7, 2016, and coverage of the Not Guilty verdicts in that trial.
On November 22, the defendants began the process of analyzing and revising the jury questionnaire used in trial 1. On November 28, the Court approved a joint defense funding request for the retention of a jury consultant to assist in the voir dire process in trial number 2. As part of this assistance the jury consultant, working closely with counsel for all trial number 2 defendants, developed the previously submitted proposed juror questionnaire. Questions 57-59 therein address potential hardships. Questions 38-49 deal with case-specific media exposure and when taken with more general questions related to attitudes towards the criminal justice system (questions 18, 20), and questions related to attitudes towards public protests (questions 24, 25) are designed to identify potential biases in jurors who have been exposed to pretrial publicity concerning the case and the verdict. A draft of the proposed questionnaire was supplied to the government by email on Sunday December 11, 2016 at 2:02 p.m. The final draft which added minor changes to the draft provided to the government was emailed to the government on December 12, 2016 at 10:56 A.M. In both emails the government was asked to make any additions or objections to the questions in advance of the December 12. 3:00 p.m. deadline. The government has had ample time to make any specific suggestions, objections, or additions to the defense’ efforts. The JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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government’s only response was to generally object to the proposed questionnaire in its entirety and to propose only minimal changes to the first questionnaire. In addition to complying with the Court’s November 21, directive, the goal of the defense in revising the juror questionnaire was to produce a shorter, targeted and more coherent document that would more accurately and concisely assist the parties in identifying potentially biased jurors while reducing the risk of juror fatigue in responding. The primary difference between the two questionnaires are three: First, the proposed questionnaire eliminates or reduces questions posed to the jurors that the defense felt were either inappropriate or yielded only marginal if any relevant information. Second, the proposed juror questionnaire is laid out in a more sequential and logical fashion than the first, and Third, the proposed questionnaire utilizes more targeted questions using graduated responses (i.e. strongly agree – strongly) disagree. The Defendants collectively believe that the proposed questionnaire is necessary because it is tailored not to trial 1 but to the different defendants and defenses that will likely be presented at trial 2. Moreover, the defense believes the proposed questionnaire will save the parties, jurors and the court time during the voir dire process. Listed briefly are the defense’ justifications for use of the proposed questionnaire.
1. Defense lawyers for group 2 had limited or no input in the drafting of the first questionnaire. Defendants Dylan Anderson and Sandra Anderson filed Motions to continue their trials on May 11 and May 16 respectively (DR #’s 542, 546) . Both Motions were granted by the Court on May 18 (DR #582). The Court’s Order indicated that a new trial would be set at the status hearing on August 3, 2016 “ …for these Defendants and any others who may waive their speedy JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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trial rights and request a continuance.” On May 24, Sean Anderson moved to continue his trial (DR# 604) By Order dated May 24, 2016 (DR #600) the court ordered that the parties begin conferring on a “case-specific” jury questionnaire that would be finalized on or before July 8, 2016 for use at trial #1. No indication was given that those who were continuing their trial needed to have their input considered as to a “case specific” questionnaire for trial # 1. On June 10 Jake Ryan moved to continue his trial (DR# 675), followed by Duane Ehmer on June 15. (DR # 707). Lastly Jason Patrick, who had unsuccessfully moved the Court previously for funding both a change of venue analysis and a jury consultant, moved to continue his own trial on June 30. (DR #866). These defendants were given no indication that they were to be bound by the design of a juror questionnaire for a trial they were told they would be excused from. These defendants have a constitutional and procedural right to be present at and meaningfully contribute in the voir dire process. See United States v. Cazares, 788 F.3d 956, 967-68 (9th Cir. 2015)(Voir Dire is a “critical stage” in the criminal prosecution of the accused.), United States v. Reyes, 764 F.3d 1184, 1188-89 (9th Cir. 2014) (rooted in the Sixth Amendment, Due Process Clause and federal Rule of Criminal Procedure 43.) 2. Juror fatigue and non-responsive returns in trial 1. The first juror questionnaire is 38 pages long. In discussing the responses to this questionnaire with the attorney from trial 1 who was responsible for the bulk of the initial questionnaire analysis, counsel was informed that there were many returned questionnaires that were only partially completed. Defense counsel believe this issue will likely only worsen in this trial as the questionnaires are likely to be received by the prospective pool shortly before or during the end of year holiday season. In a conscious effort to minimize potential non-responses the defendants have significantly reduced the volume of questions posed to the pool. The JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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proposed questionnaire is 17 rather than 38 pages. A brief survey of available peer-reviewed literature bears out the hypothesis that longer juror questionnaires produce diminishing results. For example, the abstract from a 2009 study published in Public Opinion Quarterly states: As expected, the longer the stated length, the fewer respondents started and completed the questionnaire. In addition, answers to questions positioned later in the questionnaire were faster, shorter, and more uniform than answers to questions positioned near the beginning. 1
3. Trial # 2 involves different defendants, theories, charges and defenses. If the court wishes to truly provide a “case specific” juror questionnaire, then it must recognize that despite some predicate factual similarities, these two trials are likely to be very different. For example, the role of the Mormon religion, the history of Ammon, Ryan Bundy or other first trial defendants, and important issues in the first trial such as “adverse possession” are likely to play far different roles in this case. The proposed defense questionnaire is specifically tailored to these defendants, as well as evidence and issues relevant to this trial, not the first trial. 4. The proposed questionnaire is better organized. The questionnaire in the first trial was conceptually disorganized, asking about the same subject matter in different places. This made it more difficult on trial 1 attorneys to track information throughout the process. Defense attorneys from the first trial reported some difficulties in jury selection as a result of a cumbersome and disorganized questionnaire. Defense counsel has endeavored for trial 2 to adopt a more efficient format that should save the parties, the court and the jurors, valuable time in jury selection.
1 Galesic and Bosnjak, Effects of Questionnaire Length on Participation and Indicators of Response Quality In a Web Survey, 73 Public Opinion Quarterly, Issue 2, pp 349-60, Abstract available here: http://poq.oxfordjournals.org/content/73/2/349.short JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE
Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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5. Objectionable, redundant, or relatively useless questions were eliminated or redrafted The original questionnaire contained questions which the current defendants feel were inappropriate. For example: a.
Question 2 of the first questionnaire is directed at the immigration status and origins of the respondents and their parents and spouses.
b. Question 5 of the first questionnaire is directed at the racial and ethnic background of the respondent as well as of their spouse, domestic partner and or roommate. Other questions in the first questionnaire were viewed as unhelpful or redundant: Such questions were either eliminated or reworked in the proposed questionnaire. For example: a. Question 73 of the first questionnaire asks simply if the respondent is willing to serve, and if not why. Willingness to serve, in contrast to an ability to serve impartially, is irrelevant and redundant to the question of whether or not they wish to serve. b. Questions 20-25 of the first questionnaire are directed at media habits of the respondent generally and were eliminated from the proposed questionnaire. More targeted and useful questions rergarding media exposure to this case, the prior trial and the Hammond case appear in questions 40-48 of the proposed questionnaire. c. Questions regarding juror attitudes towards jury nullification (#57), potential punishment (#58), juror sympathy (#59), Improper communications (#61), and the influence of family and friends (#62) were eliminated as JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104
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unhelpful and tedious. Issues such as these are dealt with in specific jury instructions and yield nothing in terms of potential juror bias that are not adequately captured in more general questions regarding the trial process. (see proposed questionnaire generally at Q’s 20-22, 49-55). 6. The proposed questionnaire makes use of a graded question format to gauge potential juror attitudes. Questions 20, 22, 24, and 33 of the proposed questionnaire employ a nuanced and graded survey of potential juror attitudes towards important issues in this trial. Such graduated questions are entirely absent in the first questionnaire. Rather than ask for a simplistic yes or no answer with a text box in which the potential jurors can choose to ignore or explain their answer, the proposed questionnaire provides a check-box scaled response of “Strongly agree,” Somewhat agree,” “Somewhat disagree,” and Strongly disagree.” This format allows for the efficient collection of highly relevant data and minimizes the risk of juror fatigue and non-responses.
RESPECTFULLY SUBMITTED This 13th day of December, 2016.
________________________________ Andrew M. Kohlmetz, Standby Counsel Jason Patrick, Pro Se
JOINT STATUS REPORT REGARDING PROPOSED JUROR QUESTIONNAIRE Kohlmetz Steen & Hanrahan PC 741 SW Lincoln Street Portland, OR 97201 (503) 224-1104