Ferguson v. JONAH – Pretrial Day 1: May 29, 2015
May 29, 2015
Proceedings began with orders from the bench on two motions (will add written orders when become available):
1. Plaintiffs’ Motion to exclude Yossi Lakier and Randy Dodge as witnesses (05/06/2015)
(See also Defendants’ opposition, filed 05/13/2015 and Plaintiffs Reply Letter Brief, filed 05/26/2015)
Order: Lakier and Dodge barred from testifying as fact witnesses, but it is premature to determine whether they should be precluded as rebuttal witnesses
2. Plaintiffs’ Motion Re “Journey Beyond” Script Spoliation (05/20/2015)
(See also Defendants’ opposition, filed 05/26/2015)
Order: Denied; Does not find sufficient evidence that spoliation of evidence occurred.
Proceedings continued with juror prescreening
General procedure
- Began with a pool of 276 potential jurors.
- Although the jury summons indicated this could be a four week trial, made sure potential jurors understood the possibility of being assigned to a lengthy trial. Court excused anyone who had prior vacation plans, school, or who provides care for young children or sick family members during the month of the trial.
- After this initial exclusion, left with approximately 130 potential jurors (this is a very rough estimate based on my own quick count)
- The judge then asked the remaining pool to indicate, by a show of hands, whether anyone knew any of the parties, attorneys, law firms, witnesses, or the judge. If anyone responded “yes,” the person was called up and questioned by the judge, with one attorney from each side present, but away from hearing of the rest of the room. The following received a “yes” response:
- Southern Poverty Law Center (4 people said yes, appeared 1 resulted in being excused)
- Firm of Cleary, Gottlieb, Steen and Hamilton (2 people, none excused)
- Judge (2 people, neither excused?)
- Next, the judge asked questions about potential knowledge of the case:
- Asked if anyone had read in any publication or heard – from any source – about this case concerning “gay conversion therapy” or “same-sex attraction therapy.” (4 responded yes, appeared 3 were excused)
- Asked if anyone had received or read an email sent out by U.S. Senator Corey Booker about “this type of therapy.” (3 people, appeared 1 excused)
- Following this questioning, jurors were given a questionnaire that contained 11 specific questions agreed to by the parties. Jurors were left to fill out the questionnaire while judge, attorneys, parties, and observers returned to the main courtroom.
- About the questionnaire: I have not received a copy, but three questions were referenced in open court:
- Some people feel a little uncomfortable around people who are gay. How do you feel?
- Have you or anyone close to you ever tried to change sexual orientation?
- Have you ever sought out or received counseling […]? [unclear if this was the entirely of the question]
- About the questionnaire: I have not received a copy, but three questions were referenced in open court:
- During lunch, attorneys and the judge reviewed questionnaires and sorted them into groups. One group was made up of those who answered many of the questions in a way that might present a problem for one or the other of the sides; another group included those whose answers didn’t likely present a problem.
- A group of approximately 55 potential jurors were brought up to the courtroom for questioning based on their answers on the questionnaire. Again, all questions were asked in the presence of the judge and one attorney from each side but away from hearing of the rest of the room.
- The rest of the day was spent questioning approximately 40 individuals from this group (there wasn’t time to get through the entire group before the end of the day). It appeared that almost everyone who was questioned was excused, with the exception of 4 of 5 who passed through the prescreening process and were asked to return Tuesday.
What’s next
On Monday, there will be additional pretrial motions. Jury selection will continue on Tuesday. The trial should begin (opening statements, possibly first witness) on Wednesday.
As to jury selection, parties want jurors to respond to another questionnaire in addition to the current one consisting of eleven questions. The judge made it clear he will not have jurors answer “another 50 or more questions” but does seem willing to entertain a second questionnaire of approximately 35 questions. This means that once potential jurors have passed the screening from this current round, anyone remaining will likely be asked to respond to this second questionnaire.
Both sides have agreed to empaneling a total of eight jurors, with at least six of them — and possibly all eight — eventually taking part in the deliberations. Each side will be allowed six challenges.
Also of interest is the list of witnesses the judge mentioned when screening jurors (this, in addition to any plaintiffs or defendants that may be called). Note that these are potential witnesses, not everyone will appear. Some witnesses will appear live, others may be by deposition video.
Elaine Berk (JONAH co-director)
Sheldon Bruck
Preston Dahlgren
David DeJiacomo
Randy Dodge
Chandler Duncan
Thaddeus Heffner
Sean Hennigan
Jonathan Hoffman
Yossi Lakier
Jeremy Schwab
Blake Smith
Jeddy Stailey
Rich Wyler (founder and director People Can Change)
Dr. Lee Beckstead
Dr. Joseph Berger
Dr. Carol Bernstein
Dr. Janja Lalich
Dr. Stephen Phillipson