Maxwell/G-Doffee v. Clerk et al

Filing 161

ORDER: The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of the (1) voir dire, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict forms. Please file an y objection or comment by noon on Friday, September 2. Signed by Judge D. P. Marshall Jr. on 8/30/2016. (Attachments: # 1 Voir Dire, # 2 Preliminary Instructions, # 3 Final Instructions, # 4 Verdict Form)(jak) (Docket text modified on 8/30/2016 to correct a typographical error).

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROBERT THOMAS MAXWELL/G-DOFFEE
ADC #108778
v.

PLAINTIFF

No. 5:13-cv-291-DPM

RICHARD CLARK, Sergeant,
ADC Maximum Security Unit; and
RODERICK L. COOKSEY, JR.

DEFENDANTS

Voir Dire Outline
A.

Preliminaries
1. Thank you for serving. Echo “Called to Serve.”
2. A morning of speaking the truth, voir dire [vor-dyer] =
twelve people good and true.
3. One to two days—regular hours.
4. Urgent or extraordinary obligations this week?

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

5. Rules of the Road:
•

Can I be completely fair and impartial?

•

Can I decide the case based solely on the evidence
seen and heard in this courtroom, the law as
explained by the Court, and my common sense?

•

Questions and Answers.

You = you and your

immediate family.

•

Raise your hand, state your name, and answer.

•

Can answer at the bench if uncomfortable answering
a particular question in front of others.

•

Eighteen, but all — Notepads.

•

Questionnaires. Summary. Confirm lawyers have.

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

•

Case Sketch — Not Evidence, Just Background.
- This civil case involves a prisoner, a prison guard,
and a former prison guard.

Robert Thomas

Maxwell/G-Doffee is an inmate in the Arkansas
Department of Correction. Richard Clark is an
ADC guard; and Roderick Cooksey is a former
ADC guard. G-Doffee claims that Clark and
Cooksey violated his Eighth Amendment right to
be free from cruel and unusual punishment.
More specifically, G-Doffee alleges that Clark and
Cooksey used excessive force against him and
verbally threatened him. G-Doffee also alleges
that Cooksey failed to protect him. Clark and
Cooksey deny these allegations.
6. Introductions
—

Plaintiff

Robert

Thomas

Maxwell/G-Doffee.

Lawyer = Jordan Tinsley.
—

Defendants Richard Clark and Roderick Cooksey.
Lawyers = Renae Hudson and Amber Schubert.

—

Witnesses - See chart on next page.

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

Possible Witnesses
Robert Thomas Maxwell/
G-Doffee

Richard Clark

Roderick Cooksey

Tracy Bryant

Mary Bryant

Anthony Jackson

William Straughn

Maurice Williams

Beverly Hilliard

Michael Ferricher

Amanda Murray

Leona Mosby

Marvin Hughey

• Know Parties? Lawyers? Witnesses?

B.

Call Eighteen, But All — Notepads.

C.

General Background Questions
• Legal training or experience?
• Know other panel members?
• Prior jury service?
• Prior court experience? Sued or been sued? Witness?

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

• Religious convictions against sitting in judgment?
• Negative feelings about civil justice system?
—
—

D.

Too many lawsuits?
If sue, then win?

Case-Specific Questions
Remember, answer about you and your immediate family.

Approach to answer sensitive questions.
• Anyone ever employed by a jail, prison, or lawenforcement agency?
• Anyone been in jail? Anyone ever had a family member
or close friend who has been in jail or prison? Visit?
• Anyone been the victim of a sexual assault?

• Anyone unable to hear a case involving sexual assault?

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

• Anyone unable to credit a witness’s testimony solely
because the witness is incarcerated?
• Anyone unable to award Maxwell/G-Doffee relief solely
because he’s an inmate?
• Anyone unable to hear a case involving alleged
homosexual acts?
E.
F.

The Unasked Question?

G.

Lawyers’ Follow-Up Questions? FRCP 47(a).

H.
1

Juror Question Time

Strikes for Cause. FRCP 47(c).1

Rule 47. Selecting Jurors
(a) EXAMINING JURORS. The court may permit the parties or
their attorneys to examine prospective jurors or may itself do so. If
the court examines the jurors, it must permit the parties or their
attorneys to make any further inquiry it considers proper, or must
itself ask any of their additional questions it considers proper.
(b) PEREMPTORY CHALLENGES. The court must allow the
number of peremptory challenges provided by 28 U.S.C. § 1870.
(c) EXCUSING A JUROR. During trial or deliberation, the court
may excuse a juror for good cause.

Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM

I. Peremptory Challenges. FRCP 47(b).2
•

Three each side.

•

Challenging Strikes. Race or Gender? Batson.3

Allen v. Brown Clinic, PLLP, 531 F.3d 568, 572 (8th Cir. 2008).
“To challenge a juror for cause, a party must show actual partiality
growing out of the nature and circumstances of the case. A district
court is required to strike for cause any juror who is shown to lack
impartiality or the appearance of impartiality, and, absent abuse of
discretion, we will not interfere with the district court’s determination
of juror qualifications. The district court is given broad discretion in
determining whether to strike jurors for cause because it is in the best
position to assess the demeanor and credibility of the prospective
jurors.” (quotations omitted)
2

28 U.S.C. § 1870
“In civil cases, each party shall be entitled to three peremptory
challenges. Several defendants or several plaintiffs may be considered
as a single party for the purposes of making challenges, or the court
may allow additional peremptory challenges and permit them to be
exercised separately or jointly.
All challenges for cause or favor, whether to the array or panel or
to individual jurors, shall be determined by the Court.”

3

Three-part test.
“In order to succeed on a Batson challenge, a party must satisfy a
three-part test. First, an objecting party must make a prima facie
showing that a peremptory challenge was made on the basis of race.
Second, if a prima facie showing has been made, the party striking
the juror must offer a race-neutral basis for striking the juror in

Court’s Draft Voir Dire
30 August 2016

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J.

Seat and Swear Jury.
“You and each of you do solemnly swear or affirm to well
and truly try the matter now on trial and render a true
verdict according to the law and the evidence, so help you
God.”

K.

Thanks and Goodbye venire. [ven–ire–e]

question. Third, the trial court must determine whether the objecting
party has proven the ultimate question of purposeful discrimination.”
Cook v. City of Bella Villa, 582 F.3d 840, 854 (8th Cir. 2009)
(quotations omitted).
“We . . . strongly urge the district courts to make on-the-record
rulings articulating the reasoning underlying a determination on a
Batson objection.” Ibid. (quotation omitted).
Court’s Draft Voir Dire
30 August 2016

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Maxwell/G-Doffee v. Clark & Cooksey
No. 5:13-cv-291-DPM