USA v. Merrick

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-009-JD
Opinion No. 2020 DNH 145
Hallett Merrick
O R D E R
Defendant Hallett Merrick moves (doc. no. 36) for discovery of information
relating to the grand jury that returned the superseding indictment against him on July 8,
2020. Merrick requests the discovery in relation to a potential motion challenging
whether the July 8, 2020, superseding indictment was returned by a grand jury from
which African Americans and other minorities were not excluded. The government
assents to the discovery requested by Merrick so long as personal identifying information
relating to grand jurors or potential grand jurors is redacted or excluded. The court grants
Merrick’s motion.
The Jury Selection and Service Act of 1968 prohibits the exclusion of anyone
from service as a grand or petit juror “on account of race, color, religion, sex, national
origin, or economic status” and states that “[i]t is the policy of the United States that all
litigants in Federal courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in the district or
division wherein the court convenes.” 28 U.S.C. §§ 1861, 1862; see also United States v.
Shader, No. 20-cr-202, ___ F. Supp. 3d ___, 2020 WL 4158059, at *2-*3 (E.D.N.Y. July
17, 2020) (noting that the Act extends to grand juries a defendant’s Fifth and Sixth
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Amendment rights to have a petit jury selected from a fair cross-section of the
community). To help effectuate this right, “[t]he parties in a case shall be allowed to
inspect, reproduce, and copy” “[t]he contents of records or papers used by the jury
commission or clerk in connection with the jury selection process” “at all reasonable
times during the preparation and pendency of” a motion to dismiss the indictment or stay
the proceedings on the ground of noncompliance with the Act. 28 U.S.C. § 1867. In Test
v. United States, the Supreme Court held that § 1867 provides “essentially an unqualified
right to inspect jury lists.” 420 U.S. 28, 30 (1975).
At the same time, § 1867 “is not a license for litigants to rummage at will through
all jury-related records maintained by the Clerk of Court.” United States v. Rice, 489 F.
Supp. 2d 1312, 1316 (S.D. Ala. 2007) (stating that “federal courts have uniformly
declined to allow unfettered access to all jury-related documents and records” and
collecting cases). Rather, discovery of jury-related records must be “reasonably
necessary for preparation of a motion under the Act.” Id.
Merrick requests production of the following material from the Clerk of Court
and/or the government:
[1] The jury selection plan used to select the grand juries who sat on July 8,
2020, including any and all modifications, additions, alterations or
refinements to this Court’s jury selection plan issued on December 20, 2016
as a result of the COVID-19 epidemic or otherwise.
[2] Any and all policies implemented by this Court in deciding whether to
excuse individuals from service on the July 8, 2020 grand jury as a result of
the COVID-19 epidemic or otherwise.
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[3] All letters or other communications sent out by the Court calling for
service on the July 8, 2020 grand jury.
[4] Any and all demographic information, including race and ethnicity
information, obtained by the Court from individuals summoned for service
on the July 8, 2020 grand jury.
[5] Any and all information about the race and ethnicity of grand jurors that
constituted a quorum on July 8, 2020 and returned the superseding
indictment against Mr. Merrick.
[6] All records and other information relating to any individuals summoned
for service as grand jurors on July 8, 2020 who were excused from service
for any reason.
[7] Any statistical or demographic analysis performed on this Court’s
Master Jury Wheel and the Qualified Jury Wheel since 2016.
Doc. 36 at 1-2. Without any objection to the scope of the discovery requested, Merrick’s
motion for discovery is GRANTED as follows. The Clerk of Court is DIRECTED to
produce to counsel for Merrick and counsel for the government the information listed
above or records of the information listed above within a reasonable time period not to
exceed fourteen (14) days. The production of this material is subject to the following
restrictions.
• The Clerk of Court shall redact personal identifying information from any material
produced pursuant to this Order, including jurors’ names, jurors’ street addresses,
the last four digits of any juror’s nine-digit zip code, any juror’s nine-digit
participation number, jurors’ phone numbers, jurors’ e-mail addresses, jurors’
employers, and any other information that the Clerk of Court calculates is
reasonably necessary to protect the identity of any juror.
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• The produced material may only be used in connection with the preparation and
litigation of a motion in this case challenging the District of New Hampshire’s
grand jury selection procedures. The produced material may not be used for
purposes of jury selection, trial, or any other matter except as already noted.
• The produced material must be returned to the court prior to or at the
commencement of jury selection or counsel must certify that the produced
material has been destroyed and that no produced material or information has been
retained in any duplicate or facsimile form.
• Consistent with 28 U.S.C. § 1867(f), the produced material may not be disclosed,
shown, or distributed in any manner to third parties. The produced material may
only be disclosed to individuals who have a need to view the material for the
defined scope of the production, as noted above.
• The defendant shall not possess the produced material at any time, except when
reviewing the material with counsel. The material may not be carried into or
reviewed in any jail facility. The material may be reviewed by the defendant by
whatever appropriate requested arrangements can be made to facilitate any such
review, including video or audio conference procedures that have been utilized
during the ongoing COVID-19 pandemic.
• Any attorney who accesses the produced material is personally responsible not
only for their compliance with this Order, but also their client’s compliance with
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the requirements of this Order and compliance by any staff member or other
person who is shown the material consistent with the parameters of this Order.
SO ORDERED.
__________________________
Joseph N. Laplante
United States District Judge
August 18, 2020
cc: Counsel of Record.
U.S. Marshal
U.S. Probation
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