In U.S. v. Fuentes, Hector and Guillermo Fuentes (2 brothers), convicted of harboring undocumented aliens for profit, conspiring to harbor undocumented aliens for profit, and aiding and abetting document fraud, were granted a new trial because a juror in describing the defendants used the phrase they are all guilty wetbacks anyway. The juror apparently made the comment to a third party at a bar while the trial was ongoing. The court, however, only learned of the remark after a guilty verdict had been returned. In deciding to grant the defendants a new trial, the judge determined, that this juror voiced a prejudgment of guilt in conjunction with an ethnic slur against these defendants and others ("they are all guilty wetbacks").
Courts generally will not overturn a verdict based on the mental processes of a juror unless it involves some type of outside influence on the juror. In fact, most courts will not even allow such evidence to be admitted. This juror anti-impeachment rule, reflected in FRE 606(B), is in place to: (1) provide verdict finality; (2) encourage jurors to freely express themselves during deliberations; and (3) reduce the amount of post-trial hounding jurors receive from attorneys.
Here, however, the trial judge found that admitting the juror comment would not violate FRE 606(B) because it was made prior to deliberations. Furthermore, the court pointed out that in U.S. v. Villar the First Circuit Court of Appeals carved out an exception to FRE 606(B). In Villar, the court found that a trial judge may at her discretion inquire into the jury deliberation process if failing to take such action would potentially compromise the defendant's 6th Amendment and Due Process rights.
Here is the motion filed by Jodi Arias' defense counsel to access the Twitter accounts of any future jurors who might be empanelled in a death penalty sentencing trial.
As some may recall, Arias was previously convicted in May of killing her on and off again boyfriend, Travis Alexander. At the time of her conviction, the jurors could not decide whether or not Arias deserved the death penalty. Thus, although she was convicted, she has not been completely sentenced. Her case is in a state flux as prosecutors must decide if they want to seat a new jury in order to pursue the death penalty. If a new jury is not empanelled, Arias will be sentenced to life.
According to defense counsel, they need access to the Twitter accounts of any future jurors to ensure that any decision made by the jury is based on evidence presented at trial not information gleaned from Twitter. The defense attorneys also note that in Arias' earlier trial some jurors failed to strictly abide by the courts admonitions against using social media. The government has not yet responded to the motion.
The California Senate paved the way for non-citizen jurors when it recently passed Assembly Bill 1401 by a vote of 25-11. The legislation allows non-citizens to serve on state juries.
Although the idea of non-citizen jurors may seem like a novel concept, it has actually been around for hundreds of years. For example, England, for close to 500 years, (the practice was eventually abolished by the Naturalization Act of 1870) permitted the jury de medietate linguae, or “jury of the half tongue.” In a jury de medietate linguae a non-citizen defendant was allowed the right to request that half of the jury consist of non-citizens. The practice was used to help non-citizens receive fair treatment under the law. Some have advocated resurrecting the jury de medietate linguae to improve minority representation in the jury box.
In addition to recommending the jury de medietate linguae, defense counsel, representing non-citizen defendants, have repeatedly filed motions requesting that non-citizens be included in the jury array (list of jurors summoned to appear for jury duty). Generally speaking, judges have ruled against these motions finding that the possible prejudice to the defendant's 6th Amendment Rights is outweighed by the government's substantial interest (understanding the proceedings and commitment to carry out the government's laws) in having only U.S. citizens serve as jurors.
I find these rulings somewhat dubious because being a citizen in and of itself does not ensure that an individual understands the trial proceedings or is committed to following the laws of this country. This is reflected every day in voir dire where many citizens summoned to jury duty regularly state that the defendant must testify or prove his innocence. These same citizens then go on to routinely ignore the rules about discussing or researching the facts in the case.
AB 1401 does not remove any requirement that jurors understand the English language; it only expands the number of individuals eligible for jury service. This bill also increases the likelihood that those tried for criminal offenses in CA are truly judged by a jury of their peers. In addition, by having non-citizen jurors, we can ensure that those receiving the benefits of living in the U.S. are also fulfilling the civic responsibilities that come with those benefits. This change may also lead U.S. citizens to better appreciate and value the importance of serving on a jury and how such service helps to preserve democracy.
It should also be noted that very few seem bothered by having non-citizens serve in our armed services where they protect this country and safeguard our constitutional principles. However, for some reason, these same individuals cannot be trusted to serve as jurors. Ironically, non-citizen service members can actually serve on military juries if summoned.
The New Mexico Supreme Court in a recent ruling (State v. Samora) reaffirmed the fact that non-English speaking jurors have a right to serve on state juries. New Mexico is one of the few states that allows non-English speaking individuals to sit as jurors. In making its ruling, the New Mexico Supreme Court cited Article VII, Section 3 of the New Mexico Constitution which states that
“[t]he right of any citizen of the state to . . . sit upon juries, shall never be restricted, abridged or impaired on account of . . . [the] inability to speak, read or write the English or Spanish languages except as may be otherwise provided in this constitution."
Here is a satirical look at politicians serving as jurors. The author attempts to create an all star jury by matching different politicians with various cases. For example, a criminal prosecutor might want a law and order juror like Senator John McCain, while a defendant in a medical malpractice suit might prefer Senator Tom Coburn who is a doctor.
Here is an interesting article discussing the military jury that is deciding the fate of the Ft. Hood shooter. As some may recall, MAJ Hasan is accused of killing 13 people and injuring 30 others during a shooting rampage at Ft. Hood, Texas in 2009. The article provides background information on the 13 (yes, 13) jurors (referred to as panel members) who will decide MAJ Hasan's fate. It also highlights some differences between the military and civilian jury systems.
The federal district court in Vermont plans to hold a hearing on allegations that three jurors committed misconduct in the capital murder trial of Donald Fell. The jury convicted Fell in 2005 of abducting and killing a supermarket employee in 2000. Although the state of Vermont does not have the death penalty, Fell was tried by the federal government which does.
The current issue before the judge is whether to have a closed or open juror misconduct hearing. Two jurors allegedly withheld information during voir dire and a third apparently drove by the scene of the crime.
The defense wants a closed hearing because they believe that the jurors will be more forthcoming. According to the defense,
Mr. Fell has a compelling interest in a full review of his claims that cannot be protected if the flow of information is chilled by the jurors’ fear of identification and disclosure.
However, the prosecution opposes a closed hearing and prefers one that is open to the public. According to the prosecution,
[i]t would make little sense to require public scrutiny of criminal trials, but later permit the outcome of such trials to be vacated in secret collateral proceedings.
Below is a news story which discusses this case further.
Here is a disturbing story out of Columbus, Ohio. Apparently, a Municipal Court judge chastised jurors for failing to convict a criminal defendant in a misdemeanor trial involving assault and disorderly conduct. In this case, Judge Amy Salerno told jurors the following:
Ninety-nine percent of the time, the jury is correct. Now it’s 98 percent. You got this wrong.
4 of the 8 jurors who sat on the case have filed a complaint about Judge Salerno with the Administrative Judge. Hopefully, he will take some action. Interestingly, others have had concerns about Judge Salerno's judicial ability.