a conviction for second degree murder, I would reverse the conviction and remand for a new trial.
* The Honorable Patrick A. Conmy, Chief Judge, United States District Court for the District Court of North Dakota, sitting by designation
The voir dire challenge arose out of the following exchange:
MR. RASMUSSEN [Assistant U.S. Attorney]: (CONTINUING) IT WILL BE SHOWN IN THIS CASE THAT ORIGINALLY THERE WERE TWO MEN CHARGED WITH THIS CRIME. THE OTHER ONE'S NAME IS PERNELL CROW.
PERNELL CROW WILL TESTIFY AND WILL TESTIFY HE HAS BEEN GIVEN IMMUNITY FROM PROSECUTION. THE CHARGE AGAINST HIM HAS BEEN DISMISSED. HE WILL TESTIFY IN THIS CASE.
BASICALLY WHAT HAS HAPPENED, HE HAS BEEN TOLD IF YOU COOPERATE WITH THE GOVERNMENT YOU WILL--THE CHARGE WILL BE DISMISSED, IF YOU TESTIFY TRUTHFULLY, NO CHARGES WILL BE BROUGHT AGAINST YOU AS A RESULT OF YOUR TESTIFYING. THAT'S THE IMMUNITY AGREEMENT.
ANYBODY HAVE A PROBLEM WITH THAT?
MA'AM?
PROSPECTIVE JUROR DEYO: I SURE DO.
MR. RASMUSSEN: MAY SHE BE EXCUSED, YOUR HONOR?
THE COURT: THE JURORS SHOULD BE ADVISED THAT THE MATTER OF THE GRANT OF IMMUNITY IS A RECOGNIZED PROCEDURE IN OUR COURT SYSTEM AND THE COURT WILL SO INSTRUCT THAT THIS JURY HAS THE RIGHT TO CONSIDER THE TESTIMONY OF ALL WITNESSES AND MAKE THEIR OWN JUDGMENT BASED UPON ALL OF THE TESTIMONY, INCLUDING THE GRANT OF IMMUNITY.
THE QUESTION I THINK MORE APPROPRIATELY IS, WILL THE FACT THAT A PERSON HAS BEEN GRANTED IMMUNITY PREVENT YOU FROM GIVING TO--FROM CONSIDERING THAT PERSON'S TESTIMONY AS YOU WOULD ANY OTHERPERSON MERELY BECAUSE OF THE GRANT OF IMMUNITY?
PROSPECTIVE JUROR DEYO: I AM AFRAID IT WOULD, SIR.
THE COURT: THERE WAS ANOTHER PERSON?
PROSPECTIVE JUROR MASON: YES.
THE COURT: TELL THE COURT WHAT YOUR POSITION IS ON THAT.
PROSPECTIVE JUROR MASON: I FIGURE IF THE GENTLEMAN DID IT, I DON'T KNOW IF HE SHOULD GET OUT OF IT BECAUSE HE AGREES TO SPEAK UP--
THE COURT: ALL RIGHT. BUT THE QUESTION IS--
PROSPECTIVE JUROR MASON: --AGAINST THE OTHER PERSON.
THE COURT: BUT THE QUESTION IS NOT WHETHER THAT PERSON SHOULD GET OUT, BUT WHETHER OR NOT YOU WOULD CONVICT ANOTHER PERSON IF YOU DID FEEL ANOTHER PERSON COMMITTED THE ACT?
PROSPECTIVE JUROR MASON: NO, I WOULD NOT.
MR. BUTLER [Defense Counsel]: YOUR HONOR, COULD WE APPROACH THE BENCH A MINUTE?
THE COURT: YOU MAY.
(AN OFF-THE-RECORD DISCUSSION WAS HAD AT THE BENCH.)
THE COURT: LADIES AND GENTLEMEN, THE MATTER OF IMMUNITY IS ONLY A PART OF THIS OVER ALL TRIAL. IT IS IMPORTANT FOR THE COURT TO MAKE SURE THAT THE MATTER OF IMMUNITY IS UNDERSTOOD BY MEMBERS OF THE JURY AND THAT YOU MAKE YOUR JUDGMENTS IN ANSWER TO THE QUESTIONS BASED UPON YOUR KNOWLEDGE OF THAT. THE COURT WILL AT A LATER DATE IN THIS TRIAL PROVIDE INSTRUCTIONS ON IMMUNITY AND AT THIS VERY PRELIMINARY STAGE OF THE EXAMINATION OF THE JURY THE ONLY THING THAT THE COURT WANTS TO STRESS IS THAT THE LAWYERS ARE ENTITLED TO KNOW AND THE GOVERNMENT