VOL I, 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA . CRIMINAL ACTION NO.
. 4:00-CR-054-Y
VS.
.
.
THOMAS REEDY (1)
. November 27, 2000
JANICE REEDY (2)
. 2:05 p.m.
LANDSLIDE, INC.(3)
.
. . . .
. . .
VOLUME I
TRIAL TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE TERRY R. MEANS
UNITED STATES DISTRICT JUDGE, and a jury.
APPEARANCES:
For the United States: Ms.
Terri M. Moore
Mr. Ronald C.H. Eddins
Assistant United States Attorneys
801 Cherry Street, Suite 1700
Fort Worth, Texas 76102
(817) 252-5200
For Defendant Thomas
Mr. Wes Ball
Reedy and Landslide, Inc.: Ball & Hase
4025 Woodland Park Boulevard
Suite 100
Arlington, Texas 76013
(817) 860-5000
For Defendant Janice Reedy: Mr. Michael P. Heiskell
Johnson, Vaughn & Heiskell
600 Texas Street, Second Floor
Fort Worth, Texas 76102-4612
(817) 877-5321
Official Court Reporter: Eileen M. Brewer
501 West Tenth Street
Fort Worth, Texas 76102-3637
(817) 334-0104
Proceedings recorded by mechanical stenography, transcript produced by
computer-aided transcription.
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P R O C E E D I N G S,
THE COURT: This is Cause No. 4:00-CR-054-Y.
Ms. Moore, who are your witnesses?
MS. MOORE: Steed Huggins, S-T-E-E-D; Dane Ritcheson;
and Steve Nelson.
THE COURT: All right. Gentlemen, would you please
raise your right hands to be sworn.
(The three witnesses are sworn.)
THE COURT: All three have said "I do." You're now
sworn and required to appear upon request of the government.
Ms. Moore, when do you wish these gentlemen to return?
MS. MOORE: At 8:30 a.m. in the
morning.
THE COURT: 8:30 a.m. in the morning, gentlemen.
You're free to go until then.
All right. We'll be bringing in the jury, and I'll be
back here upon their having been seated.
(Court in recess, 2:06 p.m. until 2:15 p.m.)
THE COURT: Let's be seated.
This is Cause No. 4:00-CR-054-Y, United States of America
versus Thomas Reedy, Janice Reedy, and Landslide, Incorporated.
Are the parties ready to proceed?
MS. MOORE: The government is ready, Your Honor.
MR. BALL: Defendant Tom Reedy and Landslide are
ready, Your Honor.
MR. HEISKELL: Defendant Janice Reedy is ready, Your
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Honor.
THE COURT: Thank you.
I'm Judge Terry R. Means, and I will be presiding over the
trial of this case. The first thing we need to do is to have
each of you stand and raise your right hands and take the oath
as a potential juror. So if you'll please stand at this time.
And please raise your right hand and take this oath.
(The jury panel is sworn.)
THE COURT: You may be seated. Was there anyone
among you who could not answer the question and the oath with
the words "I do"?
(No response.)
THE COURT: All did say "I do."
Thank you.
This is a criminal case in which the defendants are named
in 89 counts of an indictment charging them with conspiracy and
certain overt acts in violation of federal laws prohibiting
interstate transportation of visual depictions of minors
engaging in sexually explicit conduct. Twelve jurors are to be
seated plus four alternate jurors.
Those not selected for jurors here will be reporting back
to the District Clerk's Office for further instructions for
possible service in other cases later in the month.
We're going to conduct what is called a voir dire
examination at this time. "Voir dire" is a Texas corruption of
the French words voir dire, and I've deduced that no
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self-respecting Texan is going to go around saying the words
voir dire, so we've corrupted it into voir dire. However you
say it, though, it means the same thing: to speak the truth.
And that's what we're going to ask you to do here today as
we ask you certain questions that will be supplemental to the
questions you've already answered on the juror questionnaire
that you've already filled out.
We will just ask you to answer the questions that I pose
to you and the questions that the parties pose to you as simply
and as honestly as you can. There are no correct or incorrect
answers, because these relate to you and your background and
what you may have done in the past or what your attitudes are.
One thing that is important here is that we find out if
you have a bias, a prejudice, a sufficient leaning one way or
the other that would prevent you from being fair and impartial
in this case.
I'm not suggesting that to you so you can find a quick way
to get off of this jury. It's your duty to serve if you can
serve. However, we do know that it is a part of the human
condition that people have biases and prejudices that they
develop from experience, from upbringing, or from other
sources. And if you find that you have a bias or a prejudice
that would prevent you from serving on this jury fairly and
impartially, we will want to know that.
Now, this may be loosely referred to at times as a child
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pornography case, and we're not going to tell you that you must
favor laws against or in favor of child pornography in order to
be a fair and impartial juror. You may very well be opposed to
what the law says is a crime, or you may be opposed to the law
and say that shouldn't be a crime. The question that will be
posed to you, though, is not either one of those. The question
that will be posed to the final jurors in this case is: Has
the government shown the defendants, or any one of the
defendants, beyond a reasonable doubt to have committed the
crime that is alleged.
You will not have to decide whether you believe the law is
correct or not. That's for the legislature. The job you will
have is to answer the factual question of whether the
government has shown beyond a reasonable doubt that one or more
of these defendants has violated that law.
The prosecution in this case is being pursued on the basis
of an indictment. That indictment is not evidence of guilt of
any of the defendants. It's merely a formal means of bringing
an accusation. It's nothing more. It is an accusation and
nothing more. All of us have, from time to time, been accused
of something we did not do, and you should begin this case
assuming that this accusation is nothing more than that. It
gives notice to the government what it must prove. It gives
notice to the defendants what they must defend against, and
that's all.
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Is there anyone here who believes that because a person
has been accused of something there must be some evidence
against them and would consider that as evidence in this case?
(No response.)
THE COURT: And no one would. All
right.
Now, there has been some pretrial publicity about this
case. I believe there was something in one of the papers
today. I'm not sure. I haven't seen it myself. Have any of
you heard or read anything about this case?
(A few hands raised.)
THE COURT: All right. Let me get names, because
we'll want to talk to you in private a little later. First of
all, is it Mr. Moxon?
VENIREPERSON MOXON: Yes.
THE COURT: Okay. Let me just go row by row. Anyone
else on the first row?
(No response.)
THE COURT: Okay. Anyone else?
Yes, sir, Mr. Tunnell.
VENIREPERSON TUNNELL: Yes, sir.
THE COURT: Others on the first row?
(No response.)
THE COURT: All right. Second row.
(Prospective Juror No. 21 raises hand.)
THE COURT: You're Mr. Rose?
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Others on the second row?
(No response.)
THE COURT: Third row?
(A few hands raised.)
THE COURT: All right. You must be Mr. Ryan?
VENIREPERSON RYAN: Yes.
THE COURT: Others on the third row. Yes, ma'am.
Are you Ms. Walling?
VENIREPERSON WALLING: Yes.
THE COURT: Others on the third row I didn't see.
(No response.)
THE COURT: Fourth row.
(No response.)
THE COURT: Fifth row.
(A few hands raised.)
THE COURT: All right. Mr. Shaw. And is that
Mr. Goates?
VENIREPERSON FULLER: Fuller.
THE COURT: Fuller. I'm sorry, sir.
Others on the last row?
(No response.)
THE COURT: Anyone else who's had his memory jogged
by the question? The question was: Have any of you -- Do any
of you know anything about this case or believe you know
something about this case by word of mouth, by reading, or
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hearing something in the media?
(Prospective Juror No. 42 raises hand.)
THE COURT: Yes, ma'am, Ms. Crow.
Okay. Anyone else?
(No response.)
THE COURT: All right. Thank you.
There will be a point after a while at which we'll bring
you forward individually to discuss what you think you may have
heard or read so that we can determine whether that may
influence you to the point you could not be a fair and
impartial juror.
At this time I will introduce to you the defendants in
this case. Mr. Thomas Reedy, if you'll please stand, sir.
Mr. Thomas Reedy is a defendant, and also Janice Reedy. Both
defendants in this case, and there's a corporate defendant,
Landslide, Incorporated. And, Mr. Reedy, I presume you're
representing that corporation --
MR. BALL: Yes.
THE COURT: -- as an officer; is that correct?
MR. BALL: Yes.
THE COURT: All right. You may be
seated.
Do any of you know either of the Reedys or have heard of
Landslide, Incorporated? Do any of you know any one of them?
(No response.)
THE COURT: And no one does. All right.
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I'll ask, then, the counsel for the government, Ms. Moore,
to introduce herself and others at her table.
MS. MOORE: My name is Terri Moore. I'm an Assistant
United States Attorney here in Fort Worth. And at the table
with me is Mr. Ron Eddins. Mr. Eddins is also an Assistant
United States Attorney.
Bob Adams. Mr. Adams is an inspector with the United
States Postal Inspection Service. And Mike Mead. Mr. Mead is
also an inspector with the United States Postal Inspection
Service.
THE COURT: I didn't catch his name. Your name, sir?
INSPECTOR MEAD: Michael Mead, M-E-A-D.
THE COURT: Do any of you know any of the persons who
were just introduced to you by Ms. Terri Moore on behalf of the
United States?
(Prospective Juror No. 43 raises hand.)
THE COURT: All right. Are you Mr. Murray or
Mr. Mitchell?
VENIREPERSON MITCHELL: Mitchell.
THE COURT: Mr. Mitchell, would you please stand,
sir. You said that you know one of these persons. Who is it
that you know?
VENIREPERSON MITCHELL: Mike.
THE COURT: Mike Mead?
VENIREPERSON MITCHELL: Yes, sir.
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THE COURT: How do you know him?
VENIREPERSON MITCHELL: I work for the postal
service.
THE COURT: Okay. Have you ever
been over to his
home?
VENIREPERSON MITCHELL: No.
THE COURT: You don't know him personally as a friend
of yours, or is he just an acquaintance?
VENIREPERSON MITCHELL: Just an acquaintance.
THE COURT: Okay. How long have you known him?
VENIREPERSON MITCHELL: I guess about six months.
THE COURT: Okay. During that time, have you had any
difficulties or disputes with him?
VENIREPERSON MITCHELL: No, sir.
THE COURT: Have you ever been to lunch with him?
VENIREPERSON MITCHELL: No, sir.
THE COURT: All right. So you don't know him very
well.
VENIREPERSON MITCHELL: No, sir.
THE COURT: Would anything about your acquaintance
with him prevent you from being fair and impartial to the
defendants in this case?
VENIREPERSON MITCHELL: (Pause.) I don't think so.
THE COURT: Okay. You hesitated a little bit. Does
that mean that you don't, it would not affect you, or you're
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uncertain?
VENIREPERSON MITCHELL: I'm uncertain.
THE COURT: Okay. I'll probably ask you to come up a
little bit later and we'll discuss that further.
Anyone else who recognizes any of the persons who were
just introduced to you by Ms. Moore?
(No response.)
THE COURT: All right. I'm going to then ask the
government counsel to identify for you by name and, if
necessary, other identifying characteristics or facts of who
will testify for the government in this case.
If you hear a common name like Bob Jones, go ahead and
when I ask you if you know someone who is on the list and Bob
Jones is on the list and you know a Bob Jones, go ahead and
raise your hand and then we'll determine whether that Bob Jones
is the same one that she's talking about.
MS. MOORE: Steve Nelson, he's a Dallas police
detective. Mike Marshall, he used to work for Microsoft; now
works for the Attorney General for the State of Texas. Joe
Ullmann, U-L-L-M-A-N-N, FBI. Steed, S-T-E-E-D, Huggins, United
States Postal Inspection Service.
Dane Ritcheson, United States Postal Inspection Service.
Jerry Patterson, United States Postal Inspection Service. Don
Smiddy, United States Postal Inspection Service. David Cruz;
Carol Clark; Rex Rector, works for the SEC; Frank Super, FBI;
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Donna Kibbie, FBI; Dan Mikolay, United States Customs;
Ms. Mendoza that works for IBM just as a records custodian.
I can't pronounce this. Hang on.
(Ms. Moore confers with case agent.)
MS. MOORE: David Hirobayashi from Sharp computers;
Sharon Girling, police detective from England. That's about
it.
THE COURT: All right. Do any of you know any of the
persons whose names were just listed for you by the United
States Attorney?
(No response.)
THE COURT: And no one does. All
right.
Mr. Ball, would you please introduce those at the defense
table.
MR. BALL: Good afternoon. My name is Wes Ball. I'm
an attorney with an office in Arlington. I practice primarily
here in Tarrant County. Seated next to me is Thomas Reedy, my
client. I also represent a corporation called Landslide,
Incorporated.
Seated next to Mr. Reedy is Mike Heiskell, an attorney
here in Fort Worth, Texas. Mr. Heiskell will be representing
Janice Reedy, one of the defendants who's seated down at the
end of counsel table in the pink sweater.
Also with us, sitting over here are Nona Dodson and
Jennifer Lapinski. They're assisting us in this trial.
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THE COURT: Do any of you know any
of the persons
whose names were just called out for you and introduced to you
by Mr. Wes Ball, counsel on behalf of Mr. Reedy?
(No response.)
THE COURT: And no one does. Thank
you.
As I mentioned to you, this is a case that involves an
allegation of interstate transmission of depictions of sexual
activity by minors, and I would then ask: Do any of you have a
bias or a prejudice in favor of or against the government in a
case like this? A bias or a prejudice in favor of or against
the government in a case like this?
(Prospective Juror No. 19 raises hand.)
THE COURT: Yes, sir, Mr. Delario.
VENIREPERSON DELARIO: Yes, I do.
THE COURT: Okay. Could you stand, please. Could
you be a little more explicit.
VENIREPERSON DELARIO: I believe it's not right
to have minors, children, photographed for the benefit of
adults --
THE COURT: Well, you're --
VENIREPERSON DELARIO: -- in sexual activity.
THE COURT: Right. And your opinion is in direct --
directly parallel and is in keeping with what the law is in
this country. We have a law that prohibits that sort of thing,
and the question that we'll have here is, not so much do you
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agree with that law or oppose that law, because it's perfectly
appropriate for you to have your opinion that that's not
appropriate and ought to be illegal, and in fact it is illegal.
The question that we'll have to pose to you is suppose that you
were placed in the jury box here. Could you look at the facts
of the case and consider just those facts that will be put on
to the jury from the witness chair and in the exhibits and
decide whether or not the government had proven its case beyond
a reasonable doubt. Could you do that, and could you do that
without bias or prejudice in favor of the government?
VENIREPERSON DELARIO: I'm not sure based on the
question asked. Now or later or what I hear? I don't know how
to answer that right now.
THE COURT: Okay. Let me see if I understand. You
are concerned that because of the intensity of your feelings
that you might favor the government and not be able to give the
defendants a fair trial?
VENIREPERSON DELARIO: That's
correct.
THE COURT: Okay. Well, we may explore that more
later. Thank you, sir.
Is there anyone else? All right.
(Prospective Juror No. 45 raises hand.)
THE COURT: Are you Ms. Hindman?
VENIREPERSON HINDMAN: Yes, sir.
THE COURT: Please stand. Tell me what you wanted to
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say.
VENIREPERSON HINDMAN: Pretty much what you had asked
him. I don't know if I could -- I would be in agreement, of
course, with the government. But I don't know if I could
fairly state whether a person is guilty or not because of
strong feelings.
THE COURT: All right. Thank you.
I think I might be able to draw an analogy to a drug case
a little bit better. We have this question come up in drug
prosecutions all the time. People have very strong feelings
about drugs and drug trafficking. Of course, that's totally
different from this case, but it may help show the point.
The question in a drug case is not whether you agree with
the drug laws. Some people agree and some people disagree.
Some people think that drugs should be legalized. The question
in those cases is: At the conclusion of all the evidence, has
the government shown the defendant in a drug case to have
delivered marihuana or delivered cocaine or possessed it with
intent to deliver, whatever the indictment is.
So the focus of the jury is on the facts, not on the law.
The law is my job. The facts belong to the jury, and so we
will be asking each of you not to focus on the law but to focus
on the facts.
Now, if your attitude is such that you are so opposed to
depictions of minors in this way, or you believe strongly that
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that's a First Amendment question and you don't think there
should be any laws against it at all, we will ask you can you
put those aside to the point that you can look at the facts and
determine whether the government has proven its case beyond a
reasonable doubt that that law was violated.
So I would say again to the two of you who have expressed
forthrightly and honestly your concern about bias, think about
those matters. We'll take it up with you a little bit later.
We appreciate your honesty and forthrightness on it.
Anyone else?
(Prospective Juror No. 31 raises hand.)
THE COURT: Yes, ma'am. Ms. Blum?
VENIREPERSON BLUM: I feel like I just couldn't be
unbiased, because I have such strong feelings against
pornography of any kind, much less children.
THE COURT: All right. Thank you.
Anyone else?
(No response.)
THE COURT: All right. Thank you very much.
Do any of you have any religious, moral, or ethical
convictions that would prevent you from sitting in judgment of
another person? I'm not talking about this case, but there are
some people who believe that either because of their religion
or other influences that it is inappropriate to sit in judgment
of another person and that serving on a jury would be sitting
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in judgment of another person. Anyone who believes that?
(No response.)
THE COURT: And no one does. All right. Thank you.
I've mentioned a couple of times here already that the
burden will be on the government to prove its case beyond a
reasonable doubt. That raises this possibility. It may be
possible at the end of this case you will believe that one or
more of the defendants is probably guilty. The question,
though, will be has the government proven that person or
persons guilty beyond a reasonable doubt.
So you could believe that someone is probably guilty but
still have a reasonable doubt about whether they are in fact
guilty. Can you see how that could happen? Anyone who cannot?
Anyone please tell me if you do not understand what I'm talking
about.
(No response.)
THE COURT: All right. Ms. Quirk, you've been paying
close attention. What would be the appropriate verdict if you
believed that a person was probably guilty but you're not
convinced beyond a reasonable doubt?
VENIREPERSON QUIRK: I could not render a verdict.
THE COURT: Or would the verdict appropriately be not
guilty?
VENIREPERSON QUIRK: Yes, yes.
THE COURT: All right. Anyone who disagrees with
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that?
(No response.)
THE COURT: The appropriate verdict in a jury case
where the jury believes that a defendant probably committed the
crime but is not convinced beyond a reasonable doubt is not
guilty. Anyone who fails to understand that, or understands it
and disagrees?
(No response.)
THE COURT: Anyone?
(No response.)
THE COURT: All right. So to go over it one more
time. This is very important. If at the conclusion of this
case you believe that one or more of the defendants is probably
guilty but you're not convinced beyond a reasonable doubt, I
think you're telling me that you would vote not guilty. Anyone
who could not vote not guilty?
(No response.)
THE COURT: And everyone could. All
right. Thank
you.
This next question will bleed over into a question I asked
previously that Mr. Delario and Ms. Hindman reacted to. Also,
Ms. Blum. But if you were on trial here today, would you want
someone like yourself sitting on your jury, or are you just the
kind of person that's likely to convict, especially where
there's an allegation made like in this case? Anyone?
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(No response.)
THE COURT: Concerned about having someone like
yourself on your jury?
(No response.)
THE COURT: All right. Thank you.
This case is likely to take this entire week to try. I've
awarded a certain number of hours to each side, and I believe
that we can complete this case this week. The attorneys are
not real happy about it, but I've got to try to finish this
case this week because I've got another trial or two next week.
So I'm going to tell you we'll probably complete this case this
week.
Is there anyone here who has such pressing personal or
business matters that you believe you just should not or cannot
serve on this jury?
(Prospective Juror No. 15 raises hand.)
THE COURT: Yes, sir. Are you Mr. Morgan?
VENIREPERSON MORGAN: Yes, sir.
THE COURT: Please stand.
VENIREPERSON MORGAN: Right now I'm interviewing for
a job right now. We have one car, and so if I'm gone with the
car then my wife can't get to work nor pick our children up
from school. We also have a four-year old at home so when
she's gone to work, then I take care of him. So it is very
difficult.
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THE COURT: Okay. Hold on. You may be seated.
(Court confers with court coordinator.)
THE COURT: Are you the primary
caregiver for your
children?
VENIREPERSON MORGAN: No, I wouldn't be the primary
caregiver, I guess.
THE COURT: Well, your wife is currently employed?
VENIREPERSON MORGAN: Part-time.
THE COURT: She's part-time?
VENIREPERSON MORGAN: Right.
THE COURT: And you're looking for jobs just now.
VENIREPERSON MORGAN: That's
correct.
THE COURT: And how many children do you have?
VENIREPERSON MORGAN: Three.
THE COURT: What are their ages?
VENIREPERSON MORGAN: Four, ten,
and fourteen.
THE COURT: Four, ten, and fourteen. What happens to
the four-year old while your wife is at work?
VENIREPERSON MORGAN: I take care
of him.
THE COURT: Okay. If you both were working, what
would you do?
VENIREPERSON MORGAN: I'm not sure. I guess we would
have to get someone to take care of him at that point. We
haven't done that.
THE COURT: Okay. And in the immediate past both of
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you have not been working?
VENIREPERSON MORGAN: Not -- There's always been
someone home to take care of him.
THE COURT: Okay. We'll take that into
consideration. Thank you, sir.
Anyone else?
(No response.)
THE COURT: All right. Now, I've asked you several
questions. I don't always cover the waterfront. Is there any
question that I failed to ask or any fact that I failed to
elicit that you think we ought to know that would relate to
your ability to serve on this jury, either from a time
standpoint, an interest standpoint, or from the standpoint of
fairness? Anything we ought to know.
(Prospective Juror No. 7 raises hand.)
THE COURT: Yes, sir, Mr. Moxon
VENIREPERSON MOXON: Medical.
THE COURT: Are you the person I saw --
VENIREPERSON MOXON: I suffer from migraine
headaches, maybe more than one a week.
THE COURT: Are you the fellow I saw in the elevator
this morning?
VENTREPERSON MOXON: I don't know.
THE COURT: Okay. Didn't make an
impression on you
if I did.
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Okay. Migraines. Do you have one now?
VENIREPERSON MOXON: I took some medication for one
this morning.
THE COURT: When you're taking medication, are you
sleepy or do you have trouble paying attention?
VENIREPERSON MOXON: Sometimes.
THE COURT: Let me delve into that just a little bit
more. Well, we're going to talk to you privately anyway about
pretrial publicity, so we'll cover that then. Help me
remember. Be sure and raise the question about your migraines.
Anyone else?
(No response.)
THE COURT: All right. Thank you.
I'm going to read to you something that relates again to
burden of proof and reasonable doubt, just a couple of
paragraphs, but I want you to listen carefully and then at the
conclusion of that reading I'll ask you a question or two.
In a criminal case the burden is on the government to
prove that the defendant is guilty beyond a reasonable doubt.
This is a different and higher standard than the preponderance
of the evidence standard that is applied in civil cases. The
law presumes a defendant to be innocent of a crime. Thus, a
defendant, although accused, begins the trial with a clean
slate, that is, with no evidence against him. And the law
permits nothing but legal evidence presented before the jury to
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be considered in support of any charges against the accused.
So the presumption of innocence alone is sufficient to
acquit a defendant unless the jurors are satisfied beyond a
reasonable doubt of the defendant's guilt after careful and
impartial consideration of all the evidence in the case.
It's not necessary that the government prove its case
beyond all possible doubt. The test is one of reasonable
doubt. A reasonable doubt is a doubt based upon reason and
common sense, the kind of doubt that would make a reasonable
person hesitate to act. Proof beyond a reasonable doubt must,
therefore, be proof of such a convincing character that a
reasonable person would not hesitate to rely and act upon it in
the most important of his own affairs.
A defendant is never to be convicted on mere suspicion or
conjecture. The burden is always upon the government to prove
guilt beyond a reasonable doubt. This burden never shifts to
the defendant for the law never imposes upon a defendant in a
criminal case the burden or duty of calling any witnesses or
producing any evidence.
Is there anyone on the panel who could not follow the law
concerning burden of proof or reasonable doubt as I just read
it to you?
(No response.)
THE COURT: And all can. Thank you.
I've mentioned to you previously -- I want to reiterate it
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-- that the defendants are brought here on an indictment. The
indictment is not evidence. It is simply a method by which the
government brings a person to trial.
Once again, is there anyone on the panel who believes that
simply because a defendant has been indicted this is, in and of
itself, some evidence of guilt?
(No response.)
THE COURT: And no one does. What you're saying by
agreeing with me on that is that these defendants have a clean
slate, and at this moment they are innocent of the charges and
will only be found guilty if you find from the evidence that
they've been shown to be guilty beyond a reasonable doubt. And
it has to be unanimous.
In a criminal case a defendant does not have to testify.
It's a fundamental, constitutional law that in this country a
person may not be required to testify and may not be required
to present any evidence. That's another way of saying we don't
require a defendant to prove the case -- to disprove the case
against him. And to require a defendant to testify or to put
on evidence would be to place the burden on its head and say
the defendant has to testify. A defendant, instead, has the
right to insist the government prove its case without any help
at all from him or her. So that will be what will be done
here.
Is there anyone here who has a quarrel with that notion,
U.S. DISTRICT COURT
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with that idea?
(No response.)
THE COURT: Is there anyone here who would hold it
against any of these defendants if they elected not to testify?
(No response.)
THE COURT: Is there anyone here who would hold it
against any of these defendants if they elected not to put on
any testimony?
(No response.)
THE COURT: I take it by your silence you would not
hold that against them, and you will look to the government to
prove its case all by itself beyond a reasonable doubt. Anyone
disagree?
(No response.)
THE COURT: All right. Thank you.
Do any of you have a special disability or problem that
would make it difficult or impossible for you to serve as a
member of this jury?
I've heard from Mr. Moxon about migraines. Anyone have a
particular difficulty with seeing? Hearing?
(Prospective Juror No. 29 raises hand.)
THE COURT: All right. Let me see, Mr. Stone. Could
you stand, please, sir. Oh, you're Mr. Lynn.
VENIREPERSON LYNN: I have trouble
hearing.
THE COURT: Okay. How have you
heard so far from
U.S. DISTRICT COURT
VOL I, 26
there?
VENIREPERSON LYNN: I couldn't hear you plainly, but
maybe if I sit closer I might.
THE COURT: Right. But you've heard most of what's
gone on, do you think?
VENIREPERSON LYNN: Most everything, yes, sir.
THE COURT: Okay. You would be sitting much closer.
Can you hear me now?
VENIREPERSON LYNN: Yes.
THE COURT: Okay. I'm going to guess you can serve
and that what we would do is if you had difficulty hearing at
any particular point, we would just ask you to raise your hand
and we would repeat what was just said.
VENIREPERSON LYNN: Thank you.
THE COURT: Thank you.
Anyone else, trouble with sight or hearing?
(Several hands raised.)
THE COURT: Yes, Ms. Walling?
VENIREPERSON SPINDOR: Spindor.
THE COURT: I'm sorry, Spindor.
VENIREPERSON SPINDOR: I have a problem hearing,
also, but I do hear fairly well with one ear.
THE COURT: Me, too.
All right. So far you think you've been able to follow
things?
U.S. DISTRICT COURT
VOL I, 27
VENIREPERSON SPINDOR: Yes, sir.
THE COURT: Okay. Good. Anyone else? I think --
Yes, sir, Mr. Robertson.
VENIREPERSON ROBERTSON: Yes. I think you pretty
well answered my question. I'm having to strain, but I think
I'm hearing what you're saying. If I can hear better over
there, I guess I could handle it.
THE COURT: Okay. Thank you.
And, yes, sir, that is Mr. Fuller -- or Mr. Goates?
VENIREPERSON GOATES: Goates. I've heard maybe half
of what's been said to this point.
THE COURT: All right.
VENIREPERSON GOATES: I can't understand most of
what's been said.
THE COURT: Why don't you go ahead and move up here
to the first row. Mr. Goates is No. 58, and he's moving up to
sit next to No. 12, Ms. Clements.
Does that help?
VENIREPERSON GOATES: Yes, sir.
THE COURT: Okay. Others who have difficulty seeing,
hearing, or some other disability that might prevent you from
serving or serving very well? Anyone?
(No response.)
THE COURT: All right. Thank you.
Have any of you ever been -- I usually have to do this by
U.S. DISTRICT COURT
VOL I, 28
row, because we usually have a number of positive responses.
Do any of you now work for a law enforcement agency, or any
member of your family or a close friend employed by law
enforcement? Before you answer, let me define family. By
"family" I just mean your children, your brothers and sisters,
or your parents. We don't want to get into aunts, uncles, and
cousins and nephews and nieces. Just your children, your
brothers and sisters, and your parents. Any of them ever been
employed, or have you ever been employed by a law enforcement
agency? First row.
(Prospective Juror No. 1 raises hand.)
THE COURT: Yes, sir, can you help me with your name.
VENIREPERSON LABRUYERE: LA-BRIAR.
THE COURT: That's not so hard, is
it?
Mr. Labruyere, would you please stand. Tell me who that
is that's been involved with law enforcement.
VENIREPERSON LABRUYERE: My father was a sheriff
in Ector County.
THE COURT: In which county?
VENIREPERSON LABRUYERE: Ector.
THE COURT: Okay. And how long ago was that?
VENIREPERSON LABRUYERE: Twenty
years ago.
THE COURT: Were you at home when he was there?
VENIREPERSON LABRUYERE: (Nods
head.)
THE COURT: So you heard tales
around the dinner
U.S. DISTRICT COURT
VOL I, 29
table about his work, I guess.
VENIREPERSON LABRUYERE: Right.
THE COURT: Anything about that time and the tales
that he would tell or the information he would bring home that
would prevent you from being fair and impartial in this case?
VENIREPERSON LABRUYERE: No, sir.
THE COURT: All right. Thank you.
Others on the first row?
(No response.)
THE COURT: Second row?
(Several hands raised.)
THE COURT: Mr. Goates.
VENIREPERSON GOATES: Does that include military
police?
THE COURT: Yes, sir.
VENIREPERSON GOATES: I was in the military police in
the service over 30 years ago.
THE COURT: All right. How long did you so serve?
VENIREPERSON GOATES: I'm sorry?
THE COURT: How long did you serve?
VENIREPERSON GOATES: I was in the military police 13
months, 13 days.
THE COURT: I guess that says you didn't enjoy it all
that much.
VENIREPERSON GOATES: I transferred from the Air
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Force to the Army.
THE COURT: All right, sir. Anything about that that
would prevent you from being fair and impartial in this case?
VENIREPERSON GOATES: No, sir.
THE COURT: All right. Thank you.
And then I think on the next row we had a couple of ladies
who were answering yes. Ms. Reynolds.
VENIREPERSON REYNOLDS: Yes, sir. My first husband
was a policeman for the City of Fort Worth.
THE COURT: Okay. And anything about your time with
him and the things that you knew because of being married to
him that would prevent you from being fair and impartial in
this case?
VENIREPERSON REYNOLDS: No, sir.
THE COURT: All right. Thank you.
And, Ms. Havens.
VENIREPERSON HAVENS: Yes, sir. I worked for the
City of Arlington and I worked there for 15 years. I've been
retired from there for about five years now.
THE COURT: Okay. And so you're not working in any
law enforcement now.
VENIREPERSON HAVENS: Not right now, no, sir.
THE COURT: Anything about your 15 years with the
Arlington PD that would prevent you from looking at this case
fairly and impartially in making up your mind about whether the
U.S. DISTRICT COURT
VOL I, 31
government has proven its case beyond a reasonable doubt, based
solely on the evidence that would be presented in the case from
the witness chair?
VENIREPERSON HAVENS: I'd do the best I could to make
a fair judgment.
THE COURT: Once more, please.
VENIREPERSON HAVENS: I said I'd do the best I could
to make a fair judgment.
THE COURT: Okay. Now, having heard that, do you
believe that you would be able to follow the instructions of
the Court to be fair and impartial and to make up your mind
based solely on what you see and hear from the witness chair
and see in exhibits?
VENIREPERSON HAVENS: I'll do the best I can.
THE COURT: You don't want to let me pin you down, do
you?
VENIREPERSON HAVENS: No, sir.
THE COURT: What is your concern, if any, about your
ability to be fair and impartial?
VENIREPERSON HAVENS: During my time working, I've
heard and seen so many things that just -- it's not close to
what I worked with but it might interfere with it.
THE COURT: All right. I'm inferring from what
you're saying that you're concerned about your ability to be
fair and impartial.
U.S. DISTRICT COURT
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VENIREPERSON HAVENS: I want to be fair and I'll do
the best I can to be fair. I'm not going to say I'm not going
to be.
THE COURT: All right. I may need to discuss things
with you further later, but maybe not. Thank you very much. I
appreciate your forthrightness.
(Court confers with court coordinator.)
THE COURT: Anyone else on the second row involved in
law enforcement or related or a friend of someone who is?
(No response.)
THE COURT: All right. Proceeding
to the third row.
Anyone?
(No response.)
THE COURT: And the fourth row?
(No response.)
THE COURT: And the last row?
(Prospective Juror No. 56 raises hand.)
THE COURT: Yes, ma'am, Ms. Gerhardt.
VENIREPERSON GERHARDT: My mother worked for Esmor in
Fort Worth.
THE COURT: Worked where?
VENIREPERSON GERHARDT: Esmor.
THE COURT: I still didn't understand that.
VENIREPERSON GERHARDT: At Esmor.
THE COURT: That's a town?
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VOL I, 33
VENIREPERSON GERHARDT: No, security here in Fort
Worth.
THE COURT: Oh, it's a security company?
VENIREPERSON GERHARDT: Uh-huh. No, I don't know
what they call it, but that's where they parole the sexual
offenders here in Fort Worth.
THE COURT: Okay. Anything about your conversations
with him (sic), if any, that would affect your ability here to
be fair and impartial, both to the government and to the
defendants?
VENIREPERSON GERHARDT: My mother never talked about
her work at home. I just knew that's where she worked.
THE COURT: Okay. So the fact that she worked for
law enforcement, just that simple fact, would not affect your
ability to be fair and impartial?
VENIREPERSON GERHARDT: She never brought any of it
home with her, so I don't know of anyone that was paroled there
or what they did or what she did.
THE COURT: All right. Thank you.
Anyone else on the last row?
(No response.)
THE COURT: Anyone who's had his memory jogged now by
hearing the others?
(Prospective Juror No. 23 raises hand.)
THE COURT: Yes, ma'am. You're Ms.
Reynolds?
U.S. DISTRICT COURT
VOL I, 34
VENIREPERSON REYNOLDS: I made a mistake.
THE COURT: Okay.
VENIREPERSON REYNOLDS: My first husband was a
policeman in Kingsville, Texas.
THE COURT: All right. Any difference now in where
he served? Does working in Kingsville make you a little less
willing to serve or able?
VENIREPERSON REYNOLDS: No.
THE COURT: Okay. Thank you.
All right. Anyone else?
(No response.)
THE COURT: All right. Have any of you at any time
been involved in a criminal matter that concerned yourself, a
member of your family as I've defined it, or a close friend, as
a witness or a victim? Once again, have any of you been
involved in a criminal matter that concerned yourself, a member
of your immediate family as I've defined it, or a close friend,
as a witness or a victim? First row.
(Prospective Juror No. 3 raises hand.)
THE COURT: Yes, sir. Mr. Wood.
VENIREPERSON WOOD: Yes, sir. My 15-year old
daughter was kidnapped. It's been about 16 years ago.
THE COURT: All right. I hope she
was returned to
you.
VENIREPERSON WOOD: Four hours later.
U.S. DISTRICT COURT
VOL I, 35
THE COURT: Okay. Anything about that traumatic
event that would prevent you from being fair and impartial in
this case?
VENIREPERSON WOOD: No.
THE COURT: All right, sir. Thank you.
Others on the first row?
(Prospective Juror No. 5 raises hand.)
THE COURT: Yes, sir, Mr. Otwell.
VENIREPERSON OTWELL: Me and my family, including my
dad and mother, are in a lawsuit right now over some
misappropriation of money, and we were told and told our money,
this and that, and it's a scam more or less.
THE COURT: So is that a civil case?
VENIREPERSON OTWELL: No, it's not. It's at the
county level at this point.
THE COURT: Now, are you the plaintiff? Are you
suing to get your money back?
VENIREPERSON OTWELL: Yes, but my dad and my uncle
are the two people, I guess, whose names appear most often.
But I'm involved in it and I've lost money on it, also.
THE COURT: Okay. Is there a criminal case that's
coming out of that as well?
VENIREPERSON OTWELL: I feel like there is. There
are two different states. This person that is implicated in
this case, there are two other states, Alabama and Wisconsin,
U.S. DISTRICT COURT
VOL I, 36
which is involved in this.
THE COURT: Okay. Anything about your experience in
that case that would prevent you in any way from being fair and
impartial to both sides in this case?
VENIREPERSON OTWELL: No, sir.
THE COURT: All right, sir. Thank you.
Continuing on the first row.
(No response.)
THE COURT: Second row? Again, the question: Have
any of you been involved in a criminal matter that concerns
yourself or a member of your family or a close friend as a
witness or a victim?
(No response.)
THE COURT: Third row?
(No response.)
THE COURT: Fourth row?
(Prospective Juror No. 44 raises hand.)
THE COURT: Yes, ma'am, Ms. Murray.
VENIREPERSON MURRAY: Yes. I was a witness on a
murder trial.
THE COURT: Hold on just a second. We need to get
Mr. Forehand some water.
(Brief pause in proceedings.)
THE COURT: Okay. Ms. Murray, tell me about your
brush with a criminal matter.
U.S. DISTRICT COURT
VOL I, 37
VENIREPERSON MURRAY: In high school my senior year
my ex-best friend committed a murder. I wasn't with him at the
time, but I was with him the other day so I had to be -- I was
a witness against him.
THE COURT: Okay. Anything about that very difficult
situation that would prevent you from being fair and impartial
here?
VENIREPERSON MURRAY: No, that was some years ago.
THE COURT: Did you believe that he was fairly
treated by the authorities?
VENIREPERSON MURRAY: Uh-huh.
THE COURT: So you don't have any
complaint about
that?
VENIREPERSON MURRAY: No.
THE COURT: Okay. Thank you very much.
Others on the fourth row?
(No response.)
THE COURT: And on the last row?
(Prospective Juror No. 50 raises hand.)
THE COURT: Yes, ma'am, are you Ms. Lykins?
VENIREPERSON LYKINS: Uh-huh.
THE COURT: Okay.
VENIREPERSON LYKINS: I was a victim of a crime. My
16-year old brother-in-law was murdered here in Fort Worth in a
a drive-by shooting.
U.S. DISTRICT COURT
VOL I, 38
THE COURT: All right. Were you with him or near him
at that time?
VENIREPERSON LYKINS: No. He was just like my son,
though.
THE COURT: But, I mean, you were not present.
VENIREPERSON LYKINS: No, sir.
THE COURT: Okay. Anything about that very tragic
situation that would prevent you from being fair and impartial
in this case to the government and to the defendants?
VENIREPERSON LYKINS: No, sir.
THE COURT: All right. Thank you.
Anyone else who's had his memory jogged by these questions
and answers?
(No response.)
THE COURT: All right. When the evidence begins to
be put on by the government, undoubtedly some of the witnesses
will be representatives of the government, that is, they'll be
in law enforcement. And when they take the stand we will ask
you to give no greater credence or believability to any of
those witnesses than you would to any other witness. In other
words, we will ask you not to give additional credibility,
believability, to a law enforcement witness than you would to
any other witness, whether presented by the government or by
the defendants.
We will ask you to make credibility assessments once you
U.S. DISTRICT COURT
VOL I, 39
hear their testimony. We will ask you to observe them and to
determine whether you believe they are telling the truth or
they have a good memory, whether they seem to be comfortable
with what they're saying, that sort of thing. We will want you
to make credibility assessments and not just assume every
person is as credible as the next.
But we will ask you not to make that credibility
assessment based on what they're wearing or what they do for a
living. Anyone here who would find that difficult to do?
You're just so impressed with or so loyal to law enforcement
officials that you would feel a need to lean in their direction
and give their testimony greater credence or believability?
Or, on the other hand, you've had a bad brush with the law or
law enforcement and you are more inclined to disbelieve what they
say. Anyone?
(No response.)
THE COURT: All right. No one does.
All right.
Thank you.
I have granted the parties some additional time to ask you
some questions on their own. I've given the government 15
minutes and the defendants ten minutes each.
Ms. Moore, you may proceed.
MS. MOORE: Thank you, Your Honor.
Hopefully, I won't take all 15 minutes, but there are, I
guess, essentially two areas that I want to talk a little bit
U.S. DISTRICT COURT
VOL I, 40
with you about and ask you how you feel about some things. And
I hope that you will do just like you've done with the Judge,
just speak up if I say something where you know I'm talking to
you, okay?
The Judge told you that this case is about essentially
child pornography. That's what we've accused the defendants of
doing is aiding in the conspiracy and aiding and abetting in
the transportation, promotion of child pornography.
Now, the other thing that the Judge told you is that it's
the government's job, it's our duty, to prove this case to the
jury beyond a reasonable doubt. And so what does that mean
exactly? That means that I have a job to do in this courtroom
and that is I've got to convince whatever 12 people are put
over here, I've got to convince each and every one of those
folks, you folks, that these people did what the indictment
accuses them of doing.
And one of the things that has to be done in proving that
is you're going to, unfortunately, have to view some terrible
pictures. I think -- You know, I can't go into the facts of
the case and everything here at jury selection. That's really
for the people once the jury is picked to hear the facts, but I
can tell you that. And here's something that worries me about
that. If you don't speak up and say something about it now
and you're sitting over in the jury box and you fall out, okay?
Some people just might not be able to handle it, because it's
U.S. DISTRICT COURT
VOL I, 41
bad.
What would we do then? We've got to have 12 jurors to
continue on. Well, now, the Judge will pick -- you know, there
will be some alternates here, but that's not really fair to
say, oh, it's a little hotter in here than I anticipated. Let
him do my job for me, or let her step in for me. I really
don't like this. It's not the time to speak up over there once
you're picked. The time to speak up is now, okay, before we
get started. And so you be thinking about that, because I'm
going to ask you if you're going to be up to the task.
The other thing that I have to worry about is if you're
shown these terrible pictures that I'm telling you is coming
your way, are you going to get mad at the government? Okay.
Some people might do that, and I'm not here to criticize you
if you're one of those people. I'm not here to argue with you or
try to change your mind about it, because, you know, you're
entitled to your opinions. I just want to know what they are,
okay, before you're picked and put over here in the box and
then it's kind of too late.
And so I would be worried about somebody saying, well, I
cannot believe, Ms. Moore, that you brought that in here and
made me look at that. I'm mad at you and, therefore, I'm going
to vote not guilty. See, that would be something I would worry
about, right? Can y'all see that? Maybe I'm just being
paranoid, but that's something I would worry about, quite
U.S. DISTRICT COURT
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frankly.
And you heard the Judge say it's my duty, it's my burden
of proof, so I've got to do that. It's not that I want to make
your life miserable or make you sick at your stomach or make
you have a nightmare. I've got to prove that.
And so take it from the defendant's point of view, too. I
just told you my point of view. I would setting here worried
you would think, oh, my goodness. I'm mad at you. I can't
believe you brought that in here. I'm just going to vote not
guilty to teach you a lesson. First of all, let me ask you
that before I take it from the defendants' point of view. Is
there anybody here that feels like that that's what they would
do? And, again, I'm not going to try to change your mind. I
just want to know.
(Prospective Juror No. 49 raises hand.)
VENIREPERSON KOPOLOWICZ: I don't believe -- I just
can't look at the pictures.
MS. MOORE: Okay. So it's not that you would take it
out on anybody. You just think you would be one of those that
just fell out. If you saw it, you couldn't handle it.
VENIREPERSON KOPOLOWICZ: Right.
MS. MOORE: Okay. And let me say this. Just like
it's my job I've got to show you this stuff. It's your job,
you got to look at it, okay? The jury has to make a decision
on whether it is or is not child pornography and whether it is,
U.S. DISTRICT COURT
VOL I, 43
you know, these people are guilty of promoting it. And so if
it's your job, you got to look at it. I think what I hear you
saying, and, sir, I should have asked you for your name so the
court reporter can write that down. I'm sorry. And way back
there, would you stand up, please.
VENIREPERSON KOPOLOWICZ: Gary Kopolowicz.
MS. MOORE: Okay. And you're saying that as a juror
you wouldn't be able to do your job and look at it?
VENIREPERSON KOPOLOWICZ: Not if pictures are
involved.
MS. MOORE: There's pictures.
VENIREPERSON KOPOLOWICZ: I can't.
MS. MOORE: Like I say, I can't go into the facts of
the case, but I can tell you that.
VENIREPERSON KOPOLOWICZ: I can't.
MS. MOORE: You couldn't handle it. Okay.
And, sir?
VENIREPERSON OTWELL: My name is Dennis Otwell.
MS. MOORE: Yes, sir.
VENIREPERSON OTWELL: Well, I can't say how I would
react. I would hate that it would come to the point where I
would have to look at it, but I don't think that I would just
fall on my face or anything. But that's pretty embarrassing to
me. I'm just not used to that.
MS. MOORE: And, you know, who is? Really, who is?
U.S. DISTRICT COURT
VOL I, 44
Nobody is going to sit there in that jury box and look at that
and not feel some kind of an emotion.
THE COURT: Let me say this, Ms. Moore. It's not as
though we're going to ask you to concentrate on them or spend a
lot of time looking. You will have to see them, apparently.
I'm not going to prejudge that, but apparently you'll be
presented with some photographs. But it's not as though you're
going to be asked to study each one.
Okay. Go ahead.
MS. MOORE: That's true. You don't have to sit there
and take a microscope to it. You can look it at it and --
Anyway. And, again, you're going to feel something. Of course
you will. You wouldn't be a human being.
My question right now is: Would you be so angry at the
government that even if we proved a case beyond a reasonable
doubt you would refuse to go forward?
VENIREPERSON OTWELL: No.
MS. MOORE: Would anybody feel that way? And, again,
I wouldn't be fussing with you about it or trying to change
your opinion. I just want to know.
Yes, ma'am.
VENIREPERSON QUIRK: I've never seen child
pornography, and I'm afraid if I did see it I would not blame
the government. I would, more or less, blame the defendant.
MS. MOORE: Okay. Well, let's talk about that,
U.S. DISTRICT COURT
VOL I, 45
because I just got though saying let's take it from the
defendants' point of view and then I backed up and said, well,
let's finish this first.
Well, let's take it from the defendants' point of view.
What if, and I'm certainly not saying it's the case in this
situation, but what if they weren't guilty? Okay. What if you
had somebody accused of something and they just didn't do it,
but yet the government is up here showing bad picture after bad
picture. Would you just say, I don't care if they didn't prove
you're guilty or not, just because they showed me bad pictures
I'm going to find you guilty. That doesn't hardly sound fair,
does it?
I mean, you have to take a look at it and say, yes, it is
or is not child pornography, but you have to look at the other
evidence and say are these people responsible? Did these
people do what the government said they did?
We have to prove what we call elements of the offense.
The statute lays it out, you know, that this person did
knowingly, okay, transport child pornography. So you got to look
at it to see if it's child pornography. You got to look at it to
see if it was transported. You got to look at it to
see if they knowingly did it. Okay? You have to break it down
and look at the elements of the offense.
And just as I would be worried that somebody might say
that is so terrible I'm just going to punish you for showing it
U.S. DISTRICT COURT
VOL I, 46
to me, you can see how these people would be worried that you
just see a bad picture and want to punish somebody. That
wouldn't be fair either, would it? And, again, you see stuff
and it's bad, but you still have to hold it together. You know
what I mean? And make a fair decision about what is the truth,
you know, in this courtroom. And it may be just because
there's a bad picture doesn't mean these people are
automatically guilty. So you can't let your emotion carry you
through that you just want to punish somebody because the
government showed you a bad picture. Do you see both sides of
what I'm trying to say here?
Now, is there anybody here that feels like if I see a bad
picture, somebody is going to be punished, regardless of
whether you've got a case or not?
(No response.)
MS. MOORE: Nobody feels that way. Okay. You're
just being honest about seeing stuff like that would tend to,
you know, be upsetting.
VENIREPERSON QUIRK: (Nods head.)
MS. MOORE: That's natural. What if it was a
homicide case, and you had to see pictures of the deceased?
You know, that's offensive. That's terrible. It's something
you would rather not have to do, but if you're called upon to
be the juror to do it, can you do your job and do it? And make
that fair decision --
U.S. DISTRICT COURT
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VENIREPERSON QUIRK: (Nods head.)
MS. MOORE: -- without just being carried by the
emotion of a picture,
Okay. Y'all are not saying anything, but I see some
people shaking your heads, so if anybody disagrees with that,
will you speak up. Otherwise, I'll assume we're on the same
page.
(No response.)
MS. MOORE: All right. That's the first thing I want
to talk to you about, and I know my time is running out.
THE COURT: You have five minutes.
MS. MOORE: Thank you, Judge.
Here's the second thing I want to talk to you about, and
that's -- I noticed on your questionnaires that some of you
have had jury duty before, and you've actually served on a
criminal case. But a lot of people have not, and so there are
different ideas in the law that are out there that some of you
that have had jury duty may know about and some folks might
not. Have you ever heard of aiding and abetting? Have you
ever heard of that? It's the same thing as if you've been down
to the state courthouse they call it the law of parties, okay?
But it's aiding and abetting.
What does aiding and abetting mean to you, sir? I don't
have my list of everybody's name, but you're right here on the
front row.
U.S. DISTRICT COURT
VOL I, 48
VENIREPERSON FOREHAND: James
Forehand.
MS. MOORE: Are you related to Bill Forehand in any
means, by the way?
VENIREPERSON FOREHAND: No.
MS. MOORE: Okay. Mr. Forehand, what does aiding and
abetting mean to you?
VENIREPERSON FOREHAND: Helping out, basically.
MS. MOORE: Helping somebody out. Okay. And I want
to make sure that you understand that concept. Aiding and
abetting, a person can be guilty of a crime -- Well, let me
just tell you what I expect at the end of the trial, after the
jury has heard all the evidence, the Judge reads what's known
as the Court's Charge. In the Court's Charge it tells you what
the law is, and that's the law that you have an oath to follow.
And I'll just tell you what I expect the Judge will tell you
that aiding and abetting is, okay?
The law recognizes, ordinarily, anything a person can do
for himself may be accomplished by that person through the
direction of another person as his or her agent, or by acting
in concert with, or under the direction of, another person or
persons in a joint effort or enterprise.
If a person is acting under the direction of the
defendant, or if the defendant joins another person and
performs acts with the intent to commit a crime, then the law
holds the defendant responsible for the acts and conduct of
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such other persons, just as though the defendant had committed
the acts or engaged in the conduct.
So, in other words, take Bob Adams here. He's a postal
inspector. Say Bob wants to burglarize some mailboxes, all
right? He's going to do the dirty work. He's going to be the
one to actually bust into the mailbox and steal the mail. So
he's obviously guilty. Well, but he needs somebody to be the
lookout for him, right? He needs somebody to go peek and look
around the corner and make sure nobody is coming and holler at
him and let him know, you know, if it looks suspicious. So
that's me. So I'm standing there looking, "Hurry up, Bob.
Hurry up, Bob. Somebody is coming down the hall, Bob."
Now, am I guilty? Of course. I didn't lay my hands on
the mailbox. I never put my hands on the stolen mail, but you
can see that I'm into it up to my eyeballs. I am acting under
his direction. I am aiding and abetting.
Is there anybody here that disagrees with that law? Do
you think that's a good law? You think we ought to have
that law?
Okay. I see y'all shaking your heads. Anybody who thinks
we should not have that law? Bank robber goes into rob the
bank. He's got a get-away driver. The get-away driver never
goes in the bank, never has a gun in his hand, never scares
anybody and says, give me the money, but he's got that engine
revved up, okay. He's aiding and abetting. Is that a good
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thing, or should we just convict the bank robber and let the
get-away driver go home? Okay. So you understand that idea.
Does anybody have any questions of me? It may be your
only chance?
(No response.)
MS. MOORE: No questions for the government.
(Prospective Juror No. 23 raises hand.)
MS. MOORE: Yes, ma'am.
VENIREPERSON REYNOLDS: Is the jury allowed to take
notes?
MS. MOORE: That would be a question for the Judge.
It's his courtroom. He'll run that.
THE COURT: Yes, you will be allowed to take notes.
MS. MOORE: Okay. Thank you so much.
THE COURT: Mr. Ball, do you have additional voir
dire?
MR. BALL: Yes, Your Honor. May it please the Court,
members of the government, ladies and gentlemen. I'm allotted
ten minutes, so I'll talk a little fast here, and I appreciate
your honest and candid responses to the questions as I go over
them.
The one thing that I noticed on the questionnaire, before
I talk a little bit about the subject matter, was -- the Judge
talked to you a little bit about the burden of proof is on the
government and they have to prove what they've accused the
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defendants of beyond a reasonable doubt. And I do -- I won't
specify which questionnaire it was, but there was someone or
several people said one of the considerations in the case would
be whether the defendants might have shown their innocence.
And I just want to make a clarification. Does everyone
understand, or is there anyone who does not understand, that we
don't have to prove anything.
THE COURT: Mr. Ball, could you speak into the
microphone just a little better?
MR. BALL: Yes, sir.
THE COURT: Thank you.
MR. BALL: Is there anyone who believes that the
defendants have to prove that they're innocent before they're
entitled to a verdict of not guilty? Let me phrase it that
way.
(No response.)
MR. BALL: Because that's not our obligation under
the law. Some people feel that way, and that's fine. Is there
anyone who feels that way?
(No response.)
MR. BALL: I take it without a show of hands, no one
feels that way.
I want to talk to you just a second about the concept of
censorship, and I'm not specifically directing this question at
the beginning to anything involving children or child
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pornography. I'm just talking about censorship in general.
And my question is: On a scale of one to five with one being
strongly against and five being strongly in favor, what best
describes your feelings about censorship in general?
And let me just pick on someone if I can. Mr. Forehand,
I'm just talking about censorship in general, not any
particular content or material. Are you strongly against,
strongly in favor?
VENIREPERSON FOREHAND: It's kind of hard. I mean, I
could be favorable in one area and not in another.
THE COURT: I'm going to have to ask everyone, when
you respond, to stand. It's just so hard to hear all the way up here.
MR. BALL: If you would stand, please sir.
VENIREPERSON FOREHAND: I have a hard time just
saying that generally. There are a lot of different kinds of
censorships. If you want to pin me down, I would put myself
right in the middle.
MR. BALL: All right. Let me direct it to what
adults see on the internet. Let me narrow it down a little
bit.
VENIREPERSON FOREHAND: Well, it depends as to
whether it's public or private, at your house. If it's the
internet and the like, I think there should probably be
censorship there. Anybody who has access to the internet, it's
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there.
MR. BALL: All right. And what about adults,
consenting adults, looking at sexually explicit material? I'm
not talking about involving children, just material that may be
protected by the First Amendment.
VENIREPERSON FOREHAND: I guess I don't believe in
censorship there.
MR. BALL: All right. Would you be strongly against
it in that sort of --
VENIREPERSON FOREHAND: I'd be morally and personally
against it, but as far as censorship, I would say no.
MR. BALL: Thank you, sir. If I understood your
answer, as far as consenting adults looking at sexually
explicit material on the internet, you were strongly against
censorship, I take it, as long as it didn't involve children.
Was that a fair characterization?
VENIREPERSON FOREHAND: Yes.
MR. BALL: All right. Let me look on the first row.
Who, I guess, disagrees with his response to that? And some of
you do. I mean, some people are offended by any type of
sexually explicit material at all, and that's fine.
(Prospective Juror No. 10 raises hand.)
MR. BALL: Yes, ma'am, you're Ms. Maloney.
VENIREPERSON MALONEY: I would be against. I mean, I
would be for censorship, and just because I've got strong moral
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beliefs, I would rather there not be pornography on the
internet.
MR. BALL: Okay. And you would be in favor -- Do you
have any idea who might be responsible -- if you had the choice
to censor it, would you think it would be the role of the
government or others or do you know?
VENIREPERSON MALONEY: I don't know. I guess whoever
governs over what goes on the internet. I'm not that
knowledgeable of the internet to know who would be in charge of
that. But I have a 16-year old and I would not want him to be
able to get on the internet and see some of the things that are
there.
MR. BALL: All right. And, actually, the law
prohibits children from being able to access that material, or
it's against the law to show them that material.
VENIREPERSON MALONEY: I just don't think it's right.
MR. BALL: Okay. Let me ask you a question that
really directs itself to your -- I think your -- I'm looking at
the wrong number here. Bear with me just a second.
I think there's a question on the questionnaire with
regard to the type of material someone might be asked to see if
they sit as a juror on this case, and I believe you indicated
that with regard to abuse of children and stuff, you have a
tendency, if you hear about it or read about it, to cry.
VENIREPERSON MALONEY: I'm very sensitive to it. I'm
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a schoolteacher and have been around some children that have
had to be removed from their home. I just become very
emotional. It would be very difficult for me to see what I
might be asked to see. I guess I'm being selfish and maybe I
might be haunted by it, by things after it.
MR. BALL: Okay. I mean, as Ms. Moore explained to
you, you might be called upon, if you sit as a juror in this
case, to look at some pretty unpleasant and graphic photographs
or images. And she's correct. A concern we might have is that
a juror might be carried away simply by what they're seeing and
be so overcome emotionally that they want to get somebody, and
whether the rest of the proof is sufficient or not these are
the folks here, we'll just vote them guilty because the
pictures are so horrible. Do you follow what I'm saying?
VENIREPERSON MALONEY: Yes. And since there's been
questions asked, I do think I would be fair in my judgment, but
I think selfishly that it's going to affect me.
MR. BALL: Do you feel like, in spite of the effect,
you can be fair to Mr. and Ms. Reedy?
VENIREPERSON MALONEY: Yes.
MR. BALL: Thank you. I appreciate your candid
answer.
In regard to what she had to say, some folks feel like
that this material, that sexually explicit material on the
internet or elsewhere, should be censored. And I'm not talking
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about child pornography and I'm not talking about children
looking at them. I'm talking about consenting adults. With
regard to the answer Ms. Maloney gave, does anyone on the first
row agree with her answer?
(No response.)
MR. BALL: And thinks the material ought to be
censored?
What about the second row, is there anyone who is strongly
in favor of censoring sexually explicit material on the
internet that's seen by consenting adults that doesn't involve
children?
(Prospective Juror No. 23 raises hand.)
MR. BALL: Yes, ma'am. Is it Reynolds?
VENIREPERSON REYNOLDS: Yes, sir.
MR. BALL: I'd appreciate you standing if you would,
please. What are your feelings about that? Are you strongly
in favor of censoring that type of material?
VENIREPERSON REYNOLDS: Yes, sir. I'm not sure who
should do it, but I just think it's horrible.
MR. BALL: All right.
VENIREPERSON REYNOLDS: Very demeaning.
MR. BALL: Do you feel like if you heard someone was
involved in the adult entertainment business showing sexually
explicit material to consenting adults that did not involve
children, would your opinions about that cause you to rush to
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judgment about whether they were guilty of distributing child
pornography?
VENIREPERSON REYNOLDS: I think I would have to look
at all the facts.
MR. BALL: All right. Thank you, ma'am.
Anyone else on that row?
(No response.)
MR. BALL: How about the third row --
(Prospective Juror No. 31 raises hand.)
MR. BALL: -- in favor of censorship? Yes, ma'am.
Is it Blum?
VENIREPERSON BLUM: Yes. I feel that it should be
censored, and I don't see the purpose in it and why do we need
it?
MR. BALL: All right. Do you have any notions or
given any thought who might be responsible to do that, to
censor it?
VENIREPERSON BLUM: No.
MR. BALL: What about other types of material that
don't have sexual orientation, controversial reading material,
anything like that, do you have an opinion about --
VENIREPERSON BLUM: Yes. I think the books that our
children are required to read should be taken out of the
schools.
MR. BALL: All right. Thank you. Ms. Blum, thank
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you very much.
Anyone else on that row?
(Prospective Juror No. 35 raises hand.)
MR. BALL: Yes, ma'am, you're Ms. Walling?
VENIREPERSON WALLING: I agree with the lady.
MR. BALL: Maloney, I believe it was.
VENIREPERSON WALLING: I don't think it should be
there for anyone.
MR. BALL: For anyone, okay. What about other types
of material? Let's take it away from sexually explicit
material. Controversial reading material.
VENIREPERSON WALLING: Personally, I still just -- I
just don't think it should be there.
MR. BALL: All right.
VENIREPERSON WALLING: That's just my own opinion.
MR. BALL: Anyone else on that row?
Thank you for your candid answer.
(No response.)
MR. BALL: How about the fourth row?
(Prospective Juror No. 40 raises hand.)
MR. BALL: Yes, sir, Mr. Stone -- or Mannella, I
believe. Yes, sir, could you please stand.
VENIREPERSON MANNELLA: Who polices the airwaves,
television and radio? The reason I'm asking that is it seems
like consenting adults are only allowed to say certain things
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on the airwaves. They tell you, you can't say that on the
radio. You can't say that on TV. Somebody is policing that.
MR. BALL: What's your opinion about that, that that's
policed?
VENIREPERSON MANNELLA: Well, what I'm saying is
we're sitting here saying should material be censored between
consenting adults. Consenting adults watch television and
listen to the radio, so I don't see why it shouldn't be. I
don't see that that material is really necessary for society.
MR. BALL: All right. Okay. You asked a question
who does that.
VENIREPERSON MANNELLA: Yes, the
radio and TV.
MR. BALL: Do you have an opinion on who ought to?
VENIREPERSON MANNELLA: Well, I guess it's the board
that's in charge over the airwaves that's supposed to be public
domain. And so they're not allowed to say these things by some
law or they would be doing it.
MR. BALL: Okay. All right. I appreciate that, sir.
Thank you.
Anyone else on the fourth row?
(Prospective Juror No. 45 raises hand.)
MR. BALL: Yes, ma'am, Ms. Hindman.
VENIREPERSON HINDMAN: I just think it should be
censored. I don't think there should be any, whether it's
reading or pictures or graphics.
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MR. BALL: All right. Let me ask you this: If you
served as a juror and someone was in the type of business of
showing sexually explicit material that didn't involve
children, would you become so angry at their business that you
would find them guilty of something the government --
VENIREPERSON HINDMAN: I don't like adult pornography
nor children pornography.
MR. BALL: All right. And I guess my question is:
If someone was in the adult entertainment or the business of
distributing adult material, was involved in that activity that
did not involve children as a subject, in other words, they
were showing sexually explicit material to consenting adults
who apparently wanted to see it, would your opinion about their
business and the type of activity they're engaged in, you'd be
so angry at what they did that you would have a tendency to
find them guilty of, let's say, a child pornography case even
if the government didn't prove that they were involved in
child pornography?
VENIREPERSON HINDMAN: Honestly, I don't know. I
don't know how to answer that.
MR. BALL: All right. Can you see how I'm concerned
about that?
VENIREPERSON HINDMAN: Sure I do, and, you know, my
emotions toward it, just, you know, reading the questionnaire,
not knowing that's what this was going to be over, was so
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upsetting to me, you know. So I don't know what my reaction
would be emotionally once it's put towards me. And it being
something so important, I don't know what else to tell you.
MR. BALL: All right. Thank you, ma'am.
Anyone else on that row?
(Prospective Juror No. 38 raises hand.)
MR. BALL: Yes, sir, Mr. Weatherly?
VENIREPERSON WEATHERLY: I just don't believe it
ought to be there.
MR. BALL: All right. And, again, we're talking
about sexual oriented material that portrays adults, consenting
adults. You would be in favor of censoring that material.
VENIREPERSON WEATHERLY: Yes, sir.
MR. BALL: All right. Do you have any notion about
who ought to be responsible to do that?
VENIREPERSON WEATHERLY: No, sir.
MR. BALL: Okay. Thank you, sir,
for your honest
opinion.
Anyone else on that row?
(No response.)
MR. BALL: I guess the last row.
(Prospective Juror No. 50 raises hand.)
MR. BALL: Okay. There's someone in the back there,
Ms. Lykins?
VENIREPERSON LYKINS: I think there should be
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censorship. It's just too easy to do a search and end up in
one of these sites. I mean, I've innocently gone into one of
these and have been very offended. It's just too easy to get
into them.
MR. BALL: Okay. Well, let me ask you that. I take
it you've made use -- and it's on the questionnaire -- you've
made use of the internet from time to time and you've gone on
there and typed something in wanting to go see something and
you inadvertently ended up somewhere else?
VENIREPERSON LYKINS: Right.
MR. BALL: Something that was out of your control,
went to a place you didn't want to be?
VENIREPERSON LYKINS: Yes.
MR. BALL: Do you have any particular, other than
just surfing the net, do you have any particular knowledge
about how the internet works? Computers?
VENIREPERSON LYKINS: I know a little bit.
MR. BALL: How the information travels and so forth?
ENIREPERSON LYKINS: Uh-huh.
MR. BALL: Have you ever been involved in creating a
web site?
VENIREPERSON LYKINS: I just learned how to, yes. I
don't know how to go about it getting it out there. I've just
created one on my PC.
MR. BALL: All right. Was it difficult to do?
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VENIREPERSON LYKINS: Not too hard
at all.
MR. BALL: Can you change it rather
quickly, what's
on there?
VENIREPERSON LYKINS: I believe so.
MR. BALL: Okay. Thank you.
All right. Anyone else on the last row with regard to the
censorship question?
(No response.)
MR. BALL: Thank you. Real quickly --
THE COURT: Mr. Ball, your time is up.
MR. BALL: All right. Thank you for your attention.
Mr. Heiskell will have some questions for you, I'm sure. Thank
you.
MR. HEISKELL: May it please the Court, counsel for
the prosecution, and may it please you, too, ladies
and gentlemen. My name is Mike Heiskell. I'm going to talk a
little fast as well. I only have ten minutes to talk to you,
and I want to start out by asking and following up with what
Mr. Ball asked you.
Let me see by a show of hands, how many of you do believe
in censorship by the government?
(Several hands raised.)
MR. HEISKELL: Can I see a show of hands? Can you
raise them a little higher, please. And of those of you who
raised their hands, how many of you strongly believe in
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censorship, for those of you who did raise your hands?
(Several hands raised.)
MR. HEISKELL: Okay. How many believe that the
government should not be engaged in censorship, whether it's
over the internet or any other media?
(Several hands raised.)
MR. HEISKELL: I see one hand in the back. Could you
raise your hands a little higher, please.
UNIDENTIFIED VENIREPERSON: Would you repeat the
question, please.
MR. HEISKELL: How many of you don't believe in
censorship by the government in the media, whether it's the
internet or any other media outlet?
(Several hands raised.)
MR. HEISKELL: Okay. And for those of you who raised
your hands in that regard, would that include sexually explicit
material, adult material? I'm not talking about child
pornography or anything of that nature.
(Hands raised.)
MR. HEISKELL: Okay. I see one hand in the back.
That includes sexually explicit, okay.
Could you raise your hands again? I'm sorry. It's real
quick and I'm trying, I know, to rush through this, but we need
to find out how you feel about this.
(Hands raised.)
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MR. HEISKELL: Okay. Thank you. One of the things
Ms. Moore, the government prosecutor, talked about was the
burden of proof and you should know that the elements that
she's talked about, the knowingly, the promotion, the aiding
and abetting, things of that nature, those elements have to be
proved by the government 100 percent. They've got to show
beyond a reasonable doubt those elements as to each one of
these defendants.
I represent Janice Reedy, and I've got another concern.
She's a female, and part of the questionnaire had to do with
how you felt about females, in particular, who are charged with
a crime such as this. And a lot of you have strong religious
and moral beliefs concerning this topic in general. And then
in particular I want to ask you -- and some of you did comment
on the fact that if a female is charged in this that somehow
that's -- I think one person, Ms. Smith even, in the second
row, said it's a disgrace, or some words to that effect.
How many of you think that just because Ms. Reedy is a
female that that somehow, in and of itself, would cause you to
lean more against her whether -- regardless of the government's
proof. Just because she's charged with this, she's a female.
How many of you feel that way?
(No response.)
MR. HEISKELL: Anyone? (No response.)
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MR. HEISKELL: Okay. One of things you're going to
have to look at, folks, is not only evidence, but lack of
evidence. The government does have this high burden of proof,
and you're going to have to look at these people, not
collectively but also individually. What role did the people
play in this so-called conspiracy that you've heard about in
this so-called distribution of child pornography?
Now, over this past Thanksgiving holiday, I took my
16-year old son to a couple of movies. He likes to go to
movies and I like to go to movies. And you've heard all the
hue and cry lately about censorship in the movies, to keep
children under the age of 17 or 16 from going to R rated
movies, for instance, and other explicit movies.
And let me ask you in this regard: If you go to a movie
and let's say that that movie contains some objectionable
material, whether it's X rated, NC-17 -- I think that's the new
rating -- or R rating, and if you want to hold someone
responsible for that, do you think that you would look at the
ticket seller as being responsible for what is on the content
of the movie inside? Anyone?
(No response.)
VENIREPERSON QUIRK: Would you repeat that, please.
MR. HEISKELL: Yes, ma'am. You have a ticket seller,
you go up to buy -- you stand in line to buy a ticket to the
movie, and you go inside the movie and all of a sudden you see
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something that you certainly didn't intend to go in and view
and it's very objectionable to you. And it could be sexually
explicit or violent or whatever the case may be. Who would you
hold responsible for that? The ticket seller? Would that be
one of the responsible persons?
VENIREPERSON QUIRK: Is this movie already rated?
MR. HEISKELL: Yes, ma'am, it's already rated.
VENIREPERSON QUIRK: If it's already rated, I would
hold myself responsible.
MR. HEISKELL: Okay.
VENIREPERSON QUIRK: Because if it's rated an R or
NC-17, then I should not be there.
MR. HEISKELL: Do you think the ticket seller should
be responsible at all, whether you go in and you purchase a
ticket from the ticket seller?
VENIREPERSON QUIRK: (Shakes head.)
MR. HEISKELL: Well, let me take it a little bit
further. What about the bookkeeper who may be in a back office
somewhere crunching numbers and looking at the invoices and
finances and making sure that all the ticket sales were
accounted for. Would you think that person would be
responsible for what is on the content of inside the movie
theater? Anyone feel that way?
VENIREPERSON BUCHANAN: When you go see a movie or
when you buy for your children, there are guidelines for
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parents to follow. That's what the ratings are for, and at
this point in time there is no such safeguard on the internet.
It's like she said, you can be there, a child six years old can
be there browsing and ends up with some of this garbage.
So, no, the ticket seller should not be held responsible,
but there should be some kind of guidelines for parents so they
can make a choice. So the ticket seller should not be held
responsible.
MR. HEISKELL: Sure. And I think one of the concerns
that people across the country are looking at is holding the
people who actually produce and direct and distribute these
type of materials to be responsible. Wouldn't you agree with
that?
VENIREPERSON BUCHANAN: You have a choice as to
whether or not you want to see that, because they are rated.
MR. HEISKELL: Correct.
VENIREPERSON BUCHANAN: You can read reviews, you can
find out about it, and the internet does not have that yet. So
I find that question ridiculous, quite frankly.
MR. HEISKELL: Well, do you think that because there
is no "censorship" on the internet that anyone who surfs the
internet and comes across the material would be responsible
themselves? Is that what I'm hearing?
VENIREPERSON BUCHANAN: Unless you're a child, yes.
It's our responsibility as a society to protect our children,
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and we have to have the tools to do that. And at this point
the people who put this information out on the internet haven't
been held responsible because that's the only option we have as
parents, to protect our children.
MR. HEISKELL: Do you agree with what is called in
the business an adult verification service to ensure that
adults get on the internet before they get into the sexually
explicit content?
VENIREPERSON BUCHANAN: Absolutely.
MR. HEISKELL: Are you aware of such services being
provided?
VENIREPERSON BUCHANAN: It's my understanding they're
in their infancy, basically.
&n