This week the MA Supreme Judicial Court determined that the names of jurors must be made public at the completion of trial. Specifically, the high court ruled in Commonwealth v. Fujita that "a list of the names of jurors empaneled in any criminal case be included in the court file of the case, no later than at the completion of the trial."
In Fujita, a teenager was convicted of murdering his girlfriend. The press wanted the names of the jurors in the case so that they could talk to them about the trial. The court said no and instead informed the press that the judge would write the jurors and enquire if they were interested in being contacted by the media. Only two jurors said "yes."
In overruling the trial judge, the state high court found that "[o]nly on a judicial finding of good cause, which may include a risk of harm to the jurors or the integrity of their service, may such a list be withheld." Among other things, this case is a good read because it talks about the importance of having an open and transparent jury system. The opinion also mentions the prosecution of the British soldiers for the Boston Massacre and how their trial was "open to the public, and the identities of the jurors who acquitted the soldiers were known to the community."
NH Supreme Court says jury nullification statute not really a jury nullification statute.
Last week, the NH Supreme Court in State v. Rich Paul had the opportunity to interpret the state's jury nullification law (RSA 519:23) which was passed in 2012 and reads as follows:
“In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge
the facts and the application of the law in relation to the facts in controversy.”
According to the NH Supreme Court, RSA 519:23 allows the defendant “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” However, the NH Supreme Court went on to opine that the statute does not mean that the defendant can inform the jury that it has the right to judge the law or the right to ignore the law.
The NH Supreme Court wrote:
although RSA 519:23-a requires the trial court to allow the defendant “to inform the jury of its right
to judge the facts and the application of the law in relation to the facts in controversy,” it does not
require the court to allow the defendant to inform the jury that it has the right to judge the law or
the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no
moment that the court’s instructions may have contravened or undermined the defendant’s jury
nullification argument because the statute gave the defendant no right to make such an argument.
This case was brought by the appellant Rich Paul who was convicted of three counts of the sale of an ounce or more of marijuana, one count of possession with intent to distribute an ounce or more of marijuana, and one count of the sale of substance represented to be LSD. Paul appealed his conviction arguing that the trial court failed to comply with RSA 519:23 by declining to give the jury nullification instruction he requested and by giving other jury instructions that contravened his "jury nullification defense."
This week the Florida Supreme Court in Matarranz v. Florida ruled that a defendant who was convicted of First-Degree Murder and Burglary should be granted a new trial because the trial judge failed to remove a prospective biased juror for cause. Interestingly, the juror never actually served because the defense attorney used a peremptory to remove her. However, despite not serving, the defense attorney was still able preserve the issue (whether the juror should have been removed for cause) for appeal.
---he objected to the jurors
---he exhausted all peremptories
---he requested more peremptories
---he identified a specific juror he would have excused if possible
This case is also a good one to cite when an attorney or the judge is trying to "rehabilitate" a prospective juror.
The court's colloquy with the biased juror is provided below.
THE COURT: [Juror], I wanted to follow-up with you. You had answered a question about the fact that this is a burglary case and it had to do with whether or not you thought you could be a fair juror in this case. Tell me what you are thinking.
JUROR: It is just from past experiences. I have been the victim of burglaries like my house when I was younger and also I wrote down that my cousin was a victim of fraud and like trying to cash fake checks and it wasn’t really his fault and everything that happened with that and how it affected my family, that still affected me and I hold a grudge on that and he was pretty much fleeing from whoever that guy was taking checks on and my cousin was the unfortunate one that happened to cash it and that stayed on his record and it is something that I hold against him. How it affected me, my parents and my whole family. I don’t think I could be fair against [Matarranz] because I hold that grudge.
THE COURT: The grudge that you hold is against someone who violates the law?
THE COURT: But the law holds a grudge on people who violate the law once a person is convicted of violating the law, if a person is convicted and it is in my division, it is my job to sentence the victim but I hear what you are saying, but I want to make sure that you understand that this trial would not be about whether or not it is okay to have a grudge against people who commit crimes. The question is going to be was a crime committed and if it was committed whether Mr. Matarranz is the one that committed it; you understand that?
THE COURT: Well, for example you told me it was your brother?
JUROR: My cousin.
THE COURT: Who was cashing checks and he ended up getting accused of something that he in fact didn’t do?
JUROR: Yes. He had no idea about it.
THE COURT: So, you don’t hold a grudge against people who are accused of something that they didn’t do?
JUROR: No. It is just—I don’t know how it affected like—I don’t know—it is something that just stays there. I know how it affected us and how everything happened. It was during the holiday season and it was just crazy and it just makes me sad about it and it brings back bad memories.
THE COURT: And I thank you and when you have the bad memories come back since you are approaching the holidays and this is going to be a burglary case, when you look over at these two tables which way does your judgment go, if you feel like you have one?
JUROR: Towards him.
THE COURT: And you are indicating towards the defense table?
THE COURT: Let me ask the lawyers, if they have any questions?
PROSECUTOR: You have not heard any evidence yet with regard to Mr. Matarranz, right?
PROSECUTOR: Are you able to listen to the testimony and the evidence in this case with an opened mind?
JUROR: I could have an open mind about it, but it is still—knowing myself I think I would lean more towards the State of Florida just because I don’t think that it is right for someone to come in and take something that someone worked so hard for and take their life away from that person.
PROSECUTOR: Can you follow the judge’s law and the law in the State of Florida and say I know that I favor the defendant, because he looks like a family member or I favor the State because I want to be a State Attorney when I grow up. The question is, can you follow the law and not say I’m going to be more for the defendant or more for the State and just sit here and listen to the evidence and make the State prove our case beyond a reasonable doubt, because that is what we have to do?
PROSECUTOR: So my question is, can you do that even though you may feel more sympathetic particular towards one side or the other. Can you put aside your feelings and sit here with an open mind and see whether or not the State of Florida at the end of the case has proved the charges of murder in the first degree against the defendant, can you do that honestly?
JUROR: Yes, I think I could. Just like you say maybe I would lean a little more to one side, but I would have to hear everything before I can actually make a decision.
PROSECUTOR: You can’t lean. That is what you are saying when you say I think you are going to make the State nervous . . . and you are going to make [defense counsel] nervous. You can’t say I think. My question, can you put aside your feelings for the State or the feelings for the defendant, put them aside if you are selected as a juror and listen to the evidence that comes forward on the case and make a determination at the conclusion of all the evidence as to whether or not the State of Florida has proved these two charges against the defendant. Can you do that, honestly?
THE COURT: Thank you. . . .
DEFENSE COUNSEL: I’m confused. I’m sorry. . . . You started telling your honor that you couldn’t do what you just told the prosecutor that you are going to do.
JUROR: I can put it aside but, it is just that with my past experiences—I have an old mind in all things and I know that I can do it. It is just that I rather not, just because—I mean, put it aside, but I can have an open mind and put all my feelings aside. . . .
DEFENSE COUNSEL: Are those feelings going to make it easier for the State to secure a conviction against Mr. Matarranz, if you sit as a juror in this case?
JUROR: I would have to hear—like I would have to hear the whole thing.
DEFENSE COUNSEL: What are you going to require me to do?
PROSECUTOR: Judge, I’m going to object.
THE COURT: Sustained. . . .
DEFENSE COUNSEL: These feelings that you have right  now that you are leaning towards the State because of your prior experiences, would you explain those prior experiences, please.
JUROR: No prior experience, just like I explained to the judge, I had a cousin.
DEFENSE COUNSEL: Tell me about the burglary?
JUROR: The burglary was when I was younger, someone broke into my house it was on Christmas day, they stole everything and they—it is not easy for me like, an eight year old come into my house, knowing all of my presents are gone and everything that my parents worked so hard for is now gone.
DEFENSE COUNSEL: And it still brings back bad memories as you think about it now.
JUROR: Sometimes. It has gotten easier. They have been moments that I don’t even think about it, but sometimes when something comes up I think a lot of it.
DEFENSE COUNSEL: Did you start thinking about it as soon as your honor told you that one of the charges w[as] burglary?
DEFENSE COUNSEL: Can you tell me what you started thinking about as soon as you heard that it was a burglary?
JUROR: Just me walking in my house and knowing that everything that my parents worked extremely hard for is now not there and now they have to work harder again to move on forward then that. . . .
DEFENSE COUNSEL: Do you think those experiences that you have and those experiences that you are remembering today, do you think that they are going to affect you as you deliberate and make the decision whether or not Mr. Matarranz is guilty of the charge of burglary and the charge of murder.
JUROR: No, ‘cause I would have to hear it. I don’t think so.
The next day, the Juror was questioned again by the prosecutor and defense counsel.
PROSECUTOR: [Juror], same questions to you. You kind of went back and forth and I want to ask you, if you can promise that you will not hold it against the defendant because he doesn’t have a burden, if he decides not to testify or if they decide not to put on witnesses, are you okay with that?
PROSECUTOR: And you understand that it is the State’s burden to prove him guilty beyond and to the exclusion of every reasonable doubt?
PROSECUTOR: And do you understand that they do not have the burden to do anything?
PROSECUTOR: The bottom line is, you may want to hear, can you follow the law that they do not have to do anything in this case?
PROSECUTOR: And hold the State to its burden?
JUROR: Yes. . . .
. . . .
DEFENSE COUNSEL: As we are sitting here today, have you been thinking about what we talked about yesterday?
JUROR: And I talked about it and I have a more opened mind about it and I gave a thought and I have opened mind and that anything that happened to me in the past has nothing to do with this case.
DEFENSE COUNSEL: Would you like Mr. Matarranz to testify?
JUROR: It doesn’t matter. It depends on the evidence whether he is guilty or not. As of right now he is innocent because there is nothing presented to me that proves otherwise.
DEFENSE COUNSEL: Have you ever heard of somebody that did something but in real[i]ty he didn’t do it?
DEFENSE COUNSEL: What do you think about it?
JUROR: It depends on the evidence that is there because words are just words.
DEFENSE COUNSEL: Are you opened to the possibility that somebody would say that he did something very terrible, very bad which in fact he didn’t? . . . Are you opened to the possibility that somebody may admit to doing something terrible where in fact he didn’t do that?
Later, the trial court, prosecutor, and defense counsel discussed which prospective jurors they believed should remain on the panel. When the trial court asked defense counsel whether he wanted to use a peremptory challenge to strike the Juror, the following dialogue transpired:
DEFENSE COUNSEL: We move to strike [the Juror] for cause yesterday. She essentially said she would hold a grudge against people who violate the law and people who steal and this was based upon her previous victimized—the fact that she was previously the victim of burglary. She has a grudge toward the defendant. She leans towards the State and I think she even said multiple times, originally she said that she had a problem with the charges when your honor asked her if she could be fair and impartial, she said to both, even though today she kind of backtracked a little bit, she said she now has more of an opened mind. It is clear that this is a woman or a juror who could not be fair and impartial beyond a reasonable doubt that being the standard we move to strike her for cause.
THE COURT: I’m going to deny the cause challenge. Having only had heard testimony from yesterday, I would have been inclined to grant it, but her testimony yesterday includes the fact that there had been this burglary when she was eight years old, that was emotional for her because it included the theft of her Christmas toys and today based on her demeanor, I believe from her reflection, I think she was embarrassed and she said that she thought about it last night and she said that she felt that she had more of an opened mind today and that she could be fair and she realized that that burglary that happened to her had nothing to do with this case. So, for those reasons I’m going to deny the cause challenge; do you wish to exercise a peremptory?
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."
In People v. Cook, the CA appellate court both affirmed and reversed portions of the defendant's criminal conviction for vehicular manslaughter.
What I found interesting about this case is the trial court's discussion of juror experiments. In Cook, one of the jurors went out at lunchtime and bought toy cars. During deliberations, he used the cars to reenact the accident which was the central issue in the case. Defense counsel argued that the reenactment was sufficient grounds for the trial court to release the personal information of the jurors so that they could be contacted by defense counsel. In CA, juror personal information is sealed upon the issuing of the verdict and can only be unsealed by showing sufficient grounds of juror misconduct.
In this case, the trial judge, in denying the motion to unseal the jurors' personal information, found that "using plastic cars is not an experiment. That [it] is no different than drawing little pictures or using the yellow Post-It that says this car's here, that car's there." After making this determination, the trial court went on to say that "not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial." Upon review, the appellate court agreed with the trial court's reasoning on this issue.
Although juror experiments may seem at first glance rather clear-cut, it is not always easy to distinguish between conducting improper experiments and merely reexamining or testing the evidence presented at trial. The line is usually crossed when new evidence is introduced into the jury room.
One of the more memorable examples of improper juror experiments is Ohio v. Ryan Widmer. In that case several jurors took showers at home and then timed themselves as they air dried. Determining how long it took a human body to dry was a critical issue in the case, however, neither party presented definitive evidence on the issue. Once defense counsel learned about these experiments he requested and was a granted a new trial.
Other posts related to juror experiments can be found here.
In Brass v. Nevada, the Nevada Supreme Court in a three-judge panel opinion overturned the First Degree Murder conviction of Jermaine Brass who along with his brother had been convicted of killing his sister's boyfriend. The reversal was due to the faulty jury selection process that occurred during the joint murder trial of Jermaine and his brother.
During voir dire, counsel for the defendant objected to the prosecution using a peremptory challenge to remove juror No. 173 who was a Black female. This was the second African American juror challenged by the prosecution. Defense counsel argued that juror No. 173 was qualified to sit and that the prosecution was exercising its peremptory challenges in violation of Batson v. Kentucky, which prohibits using a peremptory challenge to strike a juror because of his or her race. After defense counsel raised this issue, the trial court took a 15 minute break. During that break, the trial court permanently dismissed a number of jurors to include juror No. 173.
Upon returning from the break, the judge held a Batson hearing and determined that the state had offered sufficient race-neutral reasons for challenging juror No. 173. As some may recall, a Batson hearing involves a three-step process. First, the opponent of the peremptory challenge must set forth a prima facie case of racial discrimination. Second, the proponent of the strike must offer race-neutral reasons for exercising the challenge. Third, the judge must then decide if the opponent of the strike has proven purposeful discrimination.
In overruling the trial court's actions, the Nevada Supreme Court determined that "[d]ismissing this prospective juror prior to holding the Batson hearing had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse." The Court then went on to say that failing to hold a Batson hearing is a structural error requiring reversal of defendant's conviction.
As an aside, Associate Justice Gibbons noted in a concurrence that the reason offered by the prosecutor for challenging juror No. 173 (she held democratic views) was inappropriate. According to Justice Gibbons, "[p]olitical affiliation is not a proper component as a basis for asserting a challenge to a juror."
In the state of New York, it is a "matter of strategy and tactics which ultimately rests with defense counsel." This was determined last month in People v. Colville.
The issue arose from the murder trial of Delroy Colville. In that case, the defendant was charged with second degree murder. The defendant claimed self-defense.
The defense attorney wanted to give the jury instructions on two lesser included offenses: first and second degree manslaughter. However, the defendant opposed the instructions. Although the judge agreed with defense counsel, he followed the defendant's wishes and did not give the additional instructions to the jury.
The jury convicted the defendant and he appealed. The intermediate appellate division unanimously affirmed. However, the state high court overturned the conviction finding that "[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him."
In Conway v. Arkansas, the Arkansas Supreme Court overturned the conviction of Samuel Lee Conway. Mr. Conway had been convicted of five counts of capital murder, two counts of aggravated residential burglary, and four counts of theft of property. He had also been sentenced to five life terms without parole and two additional life terms plus ninety years.
The Arkansas high court overturned the defendant's conviction based on a juror note. During Conway's trial, a juror sent the judge the following note: I don't think I can be a fair juror anymore
The judge brought the juror into chambers and the following colloquy took place:
THE PROSECUTOR: Now, do you think that once instructed at the end of this trial that you can render a fair and impartial verdict based on the evidence that you've heard from the witness stand from the exhibits you have seen?
JUROR SHEETS: I don't think so, sir. In my mind, I've made up my choice.
DEFENSE COUNSEL: [S]o you're saying that you don't believe your [sic] fair and impartial right now?
JUROR SHEETS: Not to him, sir.
DEFENSE COUNSEL: [Your] statement for this record [is] that you don't feel like you could be a fair and impartial juror?
JUROR SHEETS: No, sir.
DEFENSE COUNSEL: You don't feel like you could deliberate?
JUROR SHEETS: No, sir.
DEFENSE COUNSEL: You're done?
JUROR SHEETS: I think I'm pretty much solid on this one.
Even after this colloquy, the trial judge surprisingly denied the defendant's motion to dismiss the juror. Instead the judge stated the following:
I'm not gonna excuse him because I don't think that he's expressed anything other than the fact he has formed an opinion, which you have acknowledged jurors do then they go in and discuss it. If he reported that he refuses to deliberate once – if he is seated, once the case is submitted, that is another matter. But I do not think that anybody can sit through three days of testimony and not begin the formation of an opinion. That's just contrary to human nature and I think our process envisions that as the evidence is presented a juror assimilates it . . . . You know, and I appreciate your dilemma, that you've been informed that a jury has ben [sic] swayed by the State's evidence. But that doesn't disqualify 'em [sic] as a juror.
Last week in a split panel decision (2-1), the 9th Circuit Court of Appeals ordered a new trial for a man sentenced to death. In Ayala v. Wong, the court determined that the defendant's constitutional rights were violated during his 1989 trial for capital murder.
In this case, the defendant raised a Batson/Wheeler challenge after the prosecutor used peremptory strikes to remove prospective minority jurors. After the defense counsel raised the Batson/Wheeler motion and established a prima facie case for bias, the trial judge allowed the prosecutor to provide his race neutral reasons for his peremptory challenges during an in camera hearing where defense counsel and the defendant were excluded.
According to Judge Stephen Reinhardt of the 9th Circuit who sat on the panel, "[w]e hold that this procedure violated the Constitution..." This constitutional violation was compounded by the fact that part of the trial transcript was lost.