When Dallas Mavericks owner Mark Cuban walks into a federal courtroom on Sept. 30 to stand trial on a civil allegation of insider trading, he certainly will get plenty of attention from the national media and the potential jurors who may sit in judgment of the high-profile billionaire.
What Cuban won’t get is special treatment in the form of a “jury questionnaire,” submitted by Cuban's lawyers in the case to get a better sense of what the venire members know about Cuban, according to a recent ruling by U.S. District Judge Sidney Fitzwater, who will preside over the trial.
While federal judges usually control voir dire by asking questions of potential jurors, Cuban’s lawyers had requested that they be able to ask questions directly of the jurors through a questionnaire, because “there is a substantial risk that the prospective venire will come to the jury-selection process with preconceived beliefs, judgments and opinions — certainly more so than the venire in an average case,” according to a defense motion filed in the case.
Yet Fitzwater, who is the chief judge of the Northern District of Texas, rejected that request, noting in a Sept. 10 order that a jury questionnaire would not be necessary.
“The court concludes that its usual three-phase process will be sufficient to address the concerns raised in Cuban’s motion. In the first and third phases, the court can ‘ask probing questions to ferret out possible bias,’ ” Fitzwater writes. “During the second phase, counsel can make further, proper inquiries of the entire venire. And during the third phase, counsel can question venire members directly, without preset time constraints, to ensure that the venire members who remain (and who are subject to peremptory strikes) can be fair and impartial.”
Tom Melsheimer, managing partner of the Dallas office of Fish & Richardson. represents Cuban. Melsheimer notes that, while Fitzwater has not allowed the use of jury questionnaires in the past, it was worth asking him.
“We’re very confident that Judge Fitzwater is going to do a thorough voir dire to make sure the jury is fair and impartial,” Melsheimer says.
Kevin O’Rourke, an attorney with the U.S. Securities and Exchange Commission who is representing the government in the case, did not immediately return a call for comment.
--- John Council