Judge Mark W. Bennett of the Northern District of Iowa said he is leaving the matter for the United States Court of Appeals for the Ninth Circuit to decide.
Yesterday, Bennett placed under advisement the defense lawyers’ motion to set the record straight whether the public was excluded during the jury selection.
Bennett heard oral arguments of Assistant U.S. Attorney Eric S. O’Malley, the prosecutor, and defense lawyers Leilani Lujan, Joaquin Torres, and Ramon Quichocho.
“In my view, there’s overwhelming evidence the public was not allowed” in the courtroom during the jury selection, Bennett said.
O’Malley asked for a court decision to determine whether there was a closure of the courtroom for the public, and whether the defense failed to raise an issue at the time.
About 96 individuals were summoned for jury services and 91 potential jurors were present during the roll call when the jury selection was started by then-Chief Judge Alex R. Munson, court records stated.
Bennett said he was on island to decide on the facts of the case and not on the legal issues, and it was not contemplated that there would be multiple court hearings.
“Nobody testified the public came in,” Bennett said, referring to the jury selection.
He said even members of the U.S. Marshals Service and court security officers, when asked during direct and cross examination, could not identify an individual who was allowed to enter the courtroom during the two-day jury selection.
“No credible evidence that court security officers opened the door for the public,” Bennett said.
He said the public was excluded by the U.S. Marshals Service’s “unwritten policy” to totally clear a pew before a spectator could enter the courtroom.
During oral arguments, O’Malley said court records indicated that there was no order to exclude the public during the jury selection.
O’Malley offered three possible scenarios:
First, the closure did not happen and there was a “miscommunication” when Rowena Aldan, a sister of the former lt. governor, was told by a contract guard for the U.S. Marshals Service that she could not come inside because she was on the witness list.
Second, the defense lawyers did notice the absence of the public, and “decided not to do anything” which meant they “knowingly and voluntarily waived their right to raise an issue” at the time.
He noted that Frances Quichocho, the wife of defense lawyer Ramon Quichocho, tried to enter the courthouse in the early morning of the first day of jury selection, but a guard told her that potential jurors were being prioritized.
She testified in court that she told her husband about this incident on the same day.
O’Malley said the defense “missed” raising the issue at the time, when Judge Munson could have taken appropriate measures to correct the situation.
Earlier, Bennett admonished Supervisory Deputy U.S. Marshal Don Hall for the Districts of Guam and the CNMI for giving conflicting testimony.
Hall earlier testified that U.S. Marshals Service’s written policy on clearing pews in the courtroom was being implemented on Saipan, only to later clarify that this policy was “unwritten.”
Hall related his experience in handling jury selection in the states where there were “very large” courtrooms.
He described the federal court in Saipan as the “smallest courtroom ever.”
Hall said it was Deputy U.S. Marshal Wolfgang Calvert who “instructed” him regarding the practices in the Saipan federal court, particularly during jury selection, wherein a row had to be completely empty before the public could be accommodated.
Hall said the U.S. Marshals Service provides court security, protection to federal judges, and serving of federal warrants.
Hall said their functions also include “protecting the integrity of jurors.”
On Saipan, Hall said there has been “to some extent” jury intimidation, like threats such as staring, disrupting a family financially, and this is the reason why the public and jurors have to be separated “considering the small courtroom.”
