Does it matter that almost all juries in England and Wales are all-White? Does it matter, even if this result is the unintended and undesired result of otherwise acceptable ways of choosing juries? Finally, does it matter that almost all juries are all-White if this has no adverse effect on the treatment of non-White defendants and victims of crime? According to Cheryl Thomas, there is no injustice in a system of jury selection, which predictably results in juries with no minority members, so long as this result is not deliberate and does not adversely affect the treatment of minority defendants and victims of crime. My view is different. In and of itself, I believe, something is wrong with a system of jury selection that predictably results in all-White juries in a diverse society, such as our own. Absent reason to believe that we lack a better alternative to current modes of jury selection, a commitment to democratic government and to the equality of citizens – or so I will argue – condemns existing arrangements as unjust, whether or not they have adverse effects on jury decisions, or on the ways in which our society approaches issues of race and crime.
An Iowa Supreme Court justice, federal district judge, and an Iowa lawyer take a fresh look at the emerging jury trial innovation of jurors asking questions of witnesses (the “practice”). The authors start with the first combined comprehensive analysis of Eighth Circuit and Iowa appellate case law on the practice. This analysis reveals some interesting twists and turns, including substantial differences between the two jurisdictions’ case law and the fact that the Iowa Supreme Court first mentioned the practice more than 130 years ago in 1884. The authors incorporate and discuss prior surveys on the subject but, more importantly, conduct their own extensive and probing empirical study. This study is based on data collected from five online surveys, one each for Iowa trial court judges, federal district judges in the Eighth Circuit, and magistrate judges in the Eighth Circuit, and for two cohorts of Iowa lawyers, all conducted in the fall of 2015. The authors found a dramatic difference in virtually all of the components of the study between lawyers and judges who have experienced the practice (the clear minority) and those that haven’t (the clear majority). The authors conclude that the positive benefits of allowing jurors to question witnesses far outweigh the few negatives and provide a suggested written protocol to encourage judges who have been reluctant to try the practice to take the small leap.
Sticking with the the theme from yesterday, here is another audio or podcast discussing how Alabama law allows judges to override jury decision making in capital cases. This practice may eventually go the way of the dodo bird in light of the Supreme Court's recent ruling in Hurst v. Florida.
This chapter provides a descriptive and analytical examination of the requirement for lay jurors to give reasons for their decisions. In the 2010 case of Taxquet v. Belgium, the European Court of Human Right announced a new right for criminal defendants “to understand verdicts.” This jurisprudence has prompted a number of Council of Europe countries to overhaul their criminal procedure, including France, which now requires that its mixed courts, in which professional and lay judges deliberate collectively, justify their decisions on guilt or innocence. Descriptively, the chapter presents the Strasbourg court’s position as well as the French response to it, which have both been heralded as moral advances for criminal defendants. Analytically, the paper considers the values and purposes of reason-giving. What is this turn to heightened reason-giving trying to achieve?
I argue that while both the European Court of Human Rights and French lawmakers depict reason-giving as an individual human right belonging to criminal defendants, in practice, reason-giving functions as an accountability device primarily designed to solve systemic issues within the criminal justice system. More specifically, as the French case illustrates, the European interest in reason-giving can be tied to hopes for tighter control over trial judges. The chapter concludes that it is hard, if not impossible, to disentangle two facets of reason-giving, namely, reason-giving as a way to achieve fairness to defendants and reason-giving as a way to provide checks on legal actors who might otherwise enjoy unfettered discretion.
Scott Peterson, who is now on Death Row, recently filed his appeal in which he argued among other things (his appeal is 278 pages) that his conviction should be overturned because of a stealth juror that sat on his jury. To access his complete brief go here. To read more posts about stealth jurors go here.
As some are aware, six Baltimore police officers are facing criminal charges in the death of Freddy Gray.The first trial, which involved Officer William Porter, resulted in a mistrial. The judge handling the case encouraged the dismissed jurors to avoid talking about the case publicly. Not surprisingly, some are bothered by the actions of the trial judge which raise First Amendment concerns. To read an informative op-ed about why jurors should be allowed to share their experiences with others go here.
The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review symposium on the shooting and its aftermath, and titled "No, You Stand Up": Why Prosecutors Should Stop Hiding Behind Grand Juries," my good friend Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.
Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms seem misconceived. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest
It looks like at least one Illinois judge has found fault with the recently enacted state law that permits 6-person civil juries. According to Cook County Associate Judge William Gomolinski, who found the law unconstitutional, it takes a constitutional amendment, not a law passed by the Illinois General Assembly, to reduce the number of jurors from 12 to 6. In his opinion (Kakos v. Butler), Judge Gomolinski does a good job of not only discussing the history of a 12-person jury in Illinois, but also the benefits in comparison to a 6-person jury.
National Law Review: Amendment Reducing Size of Illinois Juries Declared Unconstitutional