Jury Related Opinion by Circuit Judge Neil M. Gorsuch
Supreme Court Nominee Judge Neil M. Gorsuch wrote an opinion in 2008 in US v. John Charles Poole (10th Circuit). Although this case does not have much value as precedence due the rather obscure facts from which it was decided, the facts, arguments and decision are interesting and give a glimpse of Judge Gorsuch’s legal reasoning in a "jury related case."
Mr. Poole was tried for the charge of “assault resulting of bodily injury”. His defense counsel requested that the verdict form also include the lessor included charge of “simple assault”. Prior to deliberations, the jury was instructed to consider the original charge. If they determined that Mr. Poole was not guilty of that charge, then to consider the lessor included offense charge. When the jury reported their verdict(s) to the court, they found Mr. Poole guilty of both the original charge and the lessor included charge. In open court, the trial declared that the lessor included verdict was “a nullity considering [the jury’s] finding on the first count,” polled the jury to confirm unanimity and gave counsel the opportunity to raise any objections. Neither counsel objected.
The defendant claimed on appeal that the verdict was “inconsistent” but the appellate court disagreed because every element of the lessor included offense necessary to find him guilty, was also an element of the original charge. However, the defendant made a more interesting argument. What if the “jury returned guilty verdicts on both the charged offense and a lesser included offense, not because it believed the government proved all the elements of both offenses, but because of a compromise in which some of the jurors found the defendant guilty of the charged offense and some found him only to be guilty of the lesser offense?” Therefore, there wasn't unanimity in either verdict and when the jury was polled, their affirmation of the verdict related to different charges.
The opinion affirms the conviction reasoning that the defendant should have made a contemporaneous objection when the verdict was received and before the jury had been dismissed. This would have allowed the trial judge to use one of the many “tools in its kit to cure” any ambiguity in the verdict. Secondly, as a matter of law we assume that jurors understand instructions so when the jury was told their lessor included verdict was a “nullity”, it is presumed they understood that. Therefore, when they were polled and each juror affirmed that the verdict was their verdict, each juror was affirming they agreed with the verdict on the original charge.
This is an interesting case because it could have happened in any state court (probably has happened a number of times) as oddities with juries and verdicts happen with some regularity. Additionally, the opinion written by Judge Gorsuch is well-written, clearly describing the facts, the decision and the legal reasoning to support it.
Last Chance Jury Service Process
The New-Herald report on February 1, 2017 that Wayne County, Michigan jurors will be given one more chance to respond before they will be forced to appear for a show cause hearing. There were more than 22,000 (roughly 22%) jurors who failed to show up for jury duty at the Wayne County Circuit Court in 2016. The article has a phone number they can call to reschedule. Chief Judge Robert Columbo said:
“Jury service is the purest form of government because jurors are not subject to political considerations or contributions, but rather decide the case based upon the evidence. Jurors represent the thinking of the community. It is a service that should command the pride and pleasure of every citizen and should not be avoided.”
Ontario, Canada Launches Free Counseling Program for Jurors
The Ontario, Canada Ministry of the Attorney General issued a press release on January 31, 2017 in which it described a new Juror Support Program. There are no costs for former jurors and the service is completely confidential. Here are some facts about the program:
- Jurors who have completed jury service can call 1-844-JUROR-ON (1-844-587-6766) to find out how to access the program.
- At any time during a trial or inquest, a juror can request counseling supports by making their concerns known to the judge or coroner.
- Before the Juror Support Program was established, the province covered the costs of counselling services to jurors by order of a judge.
- When requesting counseling, jurors will need to provide the location of the court where their jury trial or inquest took place, the start and end date of the trial/inquest and the name of the case or inquest.
- Participants will initially receive up to four one-hour counseling sessions. Jurors who feel they need additional counseling may be provided with up to four more sessions free of charge.
Attorney General Yasir Naqvi said:
“The role that jurors play in our justice system is incredibly important. While being a juror can often be a rewarding and positive experience, we know that some trials can be traumatic and very difficult. We need to make sure that jurors have access to the right supports if they need help. Ontario’s new Juror Support Program will offer free counseling to all jurors who want it so they can get the help and support they need, when they need it.”
Civil Jury Project Newsletter
The February, 2017 edition of Jury Matters which is published by the Civil Jury Project at NYU Las School is available online. One of the articles contained within it describes the projects expanded social media presence and a new website for the public. Another titled. “Federalism & Juries” describes the role jurors play in our broader system of democracy. The newsletter is worth taking a look at.
Wisconsin Jury Service Orientation Video
A jury service orientation video for the Wisconsin state courts was recently uploaded to Youtube. It features opening and closing remarks by Chief Justice Patience Drake Roggensack of the Wisconsin Supreme Court. It also uses short clips from a number of trial court judges to explain specific aspects of jury service. The video was produced by the Director of the Wisconsin State Courts, in cooperation with the Office of Court Operations. The credits give special thanks to the Wisconsin Supreme Court and Instructional Communications Systems. The 12 minute video is very well done and worth taking the time to watch.
Call for Photographs
The National Center for State Courts is currently in the process of updating the book Managing Notorious Trials into a new product, which will include a website and a book/booklet. If you have photos available electronically of a high-profile/notorious trial which are not copyrighted by a 3rd party and can send them to us, it would be greatly appreciated. These photos might depict a parking lot full of satellite trucks, police doing crowd control, masses of reporters at a press conference, structural alterations to the courthouse for the trial, etc. We will gladly publish whatever attribution is requested along with the photos. Please send any photos to Greg Hurley at firstname.lastname@example.org .