Franklin-Mason v. Johnson

District of Columbia, dcd-1:2003-cv-00945

REPLY to opposition to motion re {{69}} MOTION in Limine filed by B.J. PENN.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 RWR/JMF) RAY MABUS) Secretary of the Navy,)) Defendant.)) REPLY MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE The motion in limine asks the Court to seat a jury of twelve and to direct that plaintiff not argue to the jury, as a basis for liability in this case, that defendant breached the settlement agreement in plaintiff's earlier case. Plaintiff opposes the motion, but as we explain, her opposition is meritless. The Supreme Court's decision in Williams v. Florida, 399 U.S. 78 (1970), finding no constitutional impediment in the use of a six-person jury, has led to much scholarly work on the subject. As explained in defendant's motion, that work has found that there is a positive correlation between group size (up to twenty group members) and the quality of both group performance and group productivity. Plaintiff's opposition leaves this important point unaddressed. Nor does plaintiff address the second major criticism leveled against the six-person jury: that six person juries are unquestionably less likely than twelve person juries to include minority representation, i.e., a twelve-person jury can better reflect community attitudes and experience. See motion in limine, at 5. Plaintiff instead argues that "seating a jury of twelve will unnecessarily consume court resources in the jury selection process, and likely cause additional delays in increasing the likelihood of trial delay, if any juror is delayed in arriving at court or after a break on any day." R. 72, plaintiff's opposition, at 1. This Court's experience with twelve person juries refutes these arguments. The addi- tional time in jury selection would be minimal and the speculation about an increased problem with juror absences is just that – speculation. On the second point made in the motion in limine, that the jury should be instructed that the issue of whether defendant breached the settlement agreement is not before them and should not be a part of their deliberations, plaintiff argues that the instruction "would be highly prejudicial to the Plaintiff and would give the jury the impression that Plaintiff is a serial litigator." It is difficult to understand the basis for this statement, given plaintiff's claim that the acts of retaliation at issue in this case occurred because defendant was retaliating against her for having filed motions seeking to enforce her version of what the settlement agreement was in her earlier case. 2 For the reasons set forth above and in the motion in limine, the Court should seat a jury of twelve and plaintiff should not be permitted to argue to the jury that, in its deliberations, it should decide whether defendant breached the settlement agreement. Respectfully submitted, RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. Bar #924092 Acting Civil Chief /s/ Fred E. Haynes FRED E. HAYNES, D.C. Bar #165654 Assistant United States Attorney 555 Fourth Street, N.W., Room E-4110 Washington, D.C. 20530 202.514.7201 fred.haynes@usdoj.gov MITCHELL P. ZEFF, D.C. Bar #494066 Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 202.514.7352 Mitchell.Zeff@usdoj.gov 3