Last week, the California Appellate Court in a lengthy opinion (116 pages) overturned the murder conviction of Michael Pizarro (People v. Pizarro). This is the third time that Mr. Pizarro has had his sentence overturned by the appellate court. In this latest instance, the appellate court overturned the verdict because a juror conducted his own online research. Specifically, the juror learned that Pizarro had not only been convicted in a prior trial, but had also testified.
The trial court deemed the juror's action gross misconduct but not sufficient to overturn the verdict because of overwhelming evidence of Pizarro's guilt. The appellate court saw it differently stating that:
We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old." [However,] the juror's misconduct in disobeying the court's repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant. We view that juror's behavior in this case as criminal."
Here are the reasons offered by this specific juror for why he violated the court's rules on researching the case. The juror's rational not only demonstrates the importance of simplifying evidence but also serves as a cautionary tale for attorneys and judges.
[he] was lost. And that was really [his] reasoning to try and find to know where [he] was within the case.
felt that [he] wanted to do what was right for [defendant‟s] case and understand what was going on within the case. So that was the reason why [he] had pulled up some information, which turned out to be the very thick PDF file [the prior appellate opinion], to understand how the series of events had happened.
just wanted to understand the timeline[ and] the series of events of the case so [he could] understand so [he could] be on top of stuff while [he was] listening .…
The federal judge in the Whitey Bulger trial announced on friday that she would grant the government's request to run background checks on prospective jurors. The judge's ruling was not a real surprise. What was surprising was that the government sought permission from the court to run the background checks. Another surprise was that the court is requiring the government to share the results of the background checks with defense counsel. As a general rule, information discovered about jurors is not subject to the rules of Discovery and need not be turned over to opposing counsel. For more background on the Bulger trial go here and here.
Prosecutors in the Whitey Bulger trial recently requested that they be permitted to run criminal background checks on prospective jurors. Not surprisingly, Bulger's attorneys are opposing the government's request. Bulger's attorneys claim that
In this case, there is no compelling reason as to why the Court should verify criminal background information provided by the juror. One’s criminal record is no more relevant to the juror’s fitness to serve on the jury than any of the other inquiries into the juror’s background.
I find this story interesting because juror investigations by both prosecutors and defense attorneys have become quite common. Thus, I am a little surprised to learn that the government would even first seek permission from the court before researching the jurors.
According to the news story below, a judge in Montgomery County, Maryland has denied a defense attorney's request to research jurors online. Apparently, the judge finds the practice "totally inappropriate." The case in which the issue was raised resulted in a mistrial; therefore, the attorney did not appeal the judge's decision. Had he appealed, I think he would have won. To date, several states through court rulings have upheld the practice. In fact, in Missouri if an attorney is handling a civil case and she fails to research the jurors in her case on Missouri's Case.net system she may forfeit the opportunity to raise a later claim of juror misconduct. The practice also has support in a NY Ethics Opinion.
The problem with the judge's decision becomes more apparent when juxtaposing traditional juror research techniques with modern techniques. Historically and even today, attorneys have been allowed to drive by the house of prospective jurors; talk to the juror's friends or neighbors or go to the library to read old news paper articles about jurors. Why then should the court prevent attorneys from going online to gather information about jurors so long as they don't contact them? For more information about the topic of attorneys investigating jurors go here.
Introduction: Over the past fifty years, the Supreme Court has extended and elucidated the right to trial by jury. A handful of commentators have argued that modern Supreme Court decisions signal a shift in the Court’s jurisprudence on the jury toward a more functionalist approach that is sensitive to the competencies of juries and their historic role as protectors of liberty in American democracy. Consequently, some commentators have argued that circuit courts should follow the Supreme Court’s lead by leaving behind the formalist distinction between the judge’s law-finding and jury’s fact-finding authority that courts have made since the late nineteenth century. This shift, some commentators argue, would give the jury more authority to decide questions of law and may even pave the way for the jury’s right to nullify the law as instructed by the judge.
Yesterday, Mark O'Mara, who represents George Zimmerman, filed a motion for anonymous and sequestered jurors. As some may recall, Mr. O'Mara is representing Mr. Zimmerman in his upcoming second-degree murder trial for the death of Trayvon Martin. The motion, which primarily focuses on obtaining an anonymous jury, is available here. If granted, the motion would not require a completely anonymous jury. Attorneys and court personnel would still have access to the names of the jurors.
Historically, anonymous juries were relegated to cases where juror safety was an issue or when the judge thought that someone might try to influence the jury's verdict. However, judges are now increasingly empanelling anonymous juries in the name of juror privacy. For more background information on anonymous juries go here.
In filing his motion, Mr. O'Mara asserts that
[T]his case is different than most cases because in this case, in that it is Mr. Zimmerman who requests an anonymous jury. Mr. Zimmerman believes that juror anonymity will promote an atmosphere in which jurors can hear evidence and deliberate without fear of reprisal or harassment.
Mr. O'Mara also claims that
If this Court fails to protect the privacy of Mr. Zimmerman's potential jurors it will endanger his rights to due process of law and a fair trial by an impartial jury.
The motion also makes several references to the Casey Anthony jurors who were subject to extensive criticism for their verdict. I am not sure how the government is going to react to this motion but I am sure that the media will seek to intervene and respond. Generally speaking, if a trial judge wants to use an anonymous jury, she has to make factual findings as to why one is necessary.