The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.
Opinion and Order Denying New Trial
Defendant Curry has moved for a new trial on two grounds: (1) the method of identifying the alternate jurors; and (2) claimed prosecutorial misconduct.*fn2
At the outset of the trial, Curry's defense counsel requested that a "struck jury" method of selection be used. The Court granted the application, and then began a dialogue with counsel on the process to be used for the selection of jurors. All counsel concurred in the method used.
The method called for selecting a total number of jurors, including the 12 regular jurors plus 6 alternates, due to the unusually long Summer trial. The Court informed counsel that, in order to be sure that all jurors paid close attention to the evidence throughout the long, hot summer months in the old courthouse with cantankerous air conditioning systems, the identity of the alternates would not be the "last four in the box." The Court wanted to ensure that all jurors knew that each must pay close attention beca 00use any of them could be deliberating at the conclusion of the trial. All counsel understood the method and none objected.
The Court: We're going to seat 12 and six. We will -- we're going to seat 18, and we're not going to decide the alternates until the end of the case.
Mr. Plaisted: That's fine. That would make 18, 38, 40 to be safe. Transcript of May 15, 2006, p. 15.
The Court again stated the method for selection of alternates to make sure it was clear to everyone.
The Court: We're going to do 18 and we're not going to designate in advance who the alternates are, we're going to tell them in the preliminary instructions to the jury who are sworn, that any of them could well be jurors deliberating. None of them should assume by the location of their seat they're an alternate.
Transcript of May 15, 2006, p. 17.
The method for selecting alternates came up again when trying to determine the number of peremptories each side was entitled to.
Mr. Plaisted: We were in agreement as to the methodology for doing this, because Your Honor wanted 18 without designating, that made perfect sense, and we were --we waive anything to accomplish that. We thought we had.
Transcript of May 15, 2006, p. 26.
All counsel agreed that the usual separate designation of peremptory challenges for the regular jurors and the alternates would be waived, and that the total number of peremptories would be increased to account for both the fact that there were 2 Defendants and the fact that peremptory challenges would be made for a single group of 18 jurors. Extra peremptory strikes were given to defense counsel. Transcript of May 15, 2006, p. 26.
Two hundred prospective jurors were questioned. After excuses for hardship and other cause, all counsel made their peremptory strikes. There were 2 jurors remaining from the entire panel of 200 at the conclusion of this process. All counsel stated that they were satisfied with the jurors chosen to serve.
During the brief continuance after the completion of jury selection and the beginning of opening statements,*fn3 two jurors, numbers 11 and 18 were excused for medical reasons.*fn4 Sixteen ...