Juries

Court Holds Jurors' Use of Toy Cars to Reenact Collision Was not an Investigation (People v. Cook)

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.

NV SCT:Hold Batson Hearing Before Dismissing Prospective Juror

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." 

 

Attorney or Client: Who Decides the Jury Instructions?

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."

Conway v. Arkansas (Juror Impartiality)

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.

9th Circuit: No Ex Parte Batson Explanations

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.

For more on this case go here and here.

 

Amicus Letter in Juror #1 v. Superior Court

The Electronic Frontier Foundation (EFF) has filed an Amicus Letter urging the California Supreme Court to hear the case of Juror #1 v. Superior Court. As some may recall, this case involves defense counsel's subpoena request of a juror's Facebook posts. At present, the California Supreme Court has issued a stay while it decides whether or not to hear the case. Prior to the issuance of the stay, a California Appellate Court had directed Juror #1 to make his Facebook posts available to the court.  For past commentary and background information about this case go here.

 

Ohio Supreme Court Decides State v. Gunnell (Juror Misconduct and Double Jeopardy)

Earlier this month, the Ohio Supreme Court handed down State v. Gunnell. In Gunnell, a juror went online and looked up the terms "perverse" and "involuntary manslaughter."  Interestingly, prior to going online, the jury had asked the court for a definition of "perverse." However, the court failed to respond to the jury's request.

The trial judge's deputy discovered the juror's misconduct during deliberations and the court held a brief hearing on the issue. The judge questioned the juror about her actions; however, he never enquired as to whether the juror was biased or prejudiced by her research. After the evidentiary hearing, the judge, against the wishes of defense counsel, ordered a mistrial.

When the government sought to retry the defendant, she claimed that this new trial violated her 5th Amendment rights against being placed in Double Jeopardy. This objection was based on the theory that the earlier decision to order a mistrial was not due to "manifest necessity." This objection was overruled and the trial went forward. The defendant was convicted and she appealed.

The appellate court reversed the defendant's conviction finding that there was not "manifest necessity" to support the trial judge's decision to order a mistrial.  The state then appealed to the Ohio Supreme Court which upheld the appellate court's decision.  The Ohio Supreme Court found that  

although a trial judge’s determination of juror bias is entitled to great deference, it must be predicated on the judge’s proper discretion in hearing the case.  Mere supposition, surmise, and possibility of prejudice are not sufficient. This distinction is a simple but critical one, and one that was overlooked by the trial judge in this case. Although a trial judge’s determination of juror bias sufficient to create the need to declare a mistrial is a matter of discretion, the record here reveals nothing of substance from which the judge made his determination.

For a more complete discussion of this case go to the blog Legally Speaking Ohio.

Post-Trial Contact with Jurors in Mass. (Commonwealth v. Bresnahan)

The Massachusetts Supreme Judicial Court has just issued an opinion on post-trial contact with jurors.

Commonwealth v. Bresnahan.

Improper Juror Contact: Be Careful What You Tell Jurors

The Volokh Conspiracy blog has an interesting post about a 2004 Iowa Supreme Court case State v. Baker. The case started with the criminal conviction of Greg Shoo who was a friend of Rosemary Baker. Upon learning of Shoo's conviction, Baker called Debra Krause a juror who sat on Schoo's case. In the brief telephone call to Krause, Baker informed her that she gave the defendant "25 years." Although Krause found the call non-threatening, she was nonetheless bothered and upset by it. Thus, she contacted the police and Baker was successfully prosecuted for juror harassment. The relevant Iowa statute reads as follows:

A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person ... [c]ommunicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.

Iowa Code § 708.7(1)(a)(1) (emphasis added).

As discussed by Prof. Volokh, this case raises some important First Amendment questions. It also raises the age old question of whether jurors should have a role in sentencing the defendant. A minority of states allow jurors to play such a role. 

Louisiana Jurors May Soon Have the Right to Take Notes

At present, jurors in Louisiana may take notes during trial subject to the approval of the defense and the prosecution. However, jurors in Louisiana do not have a right to take notes. This may change if state senator Edwin Murray has his way. His bill SB5 would give jurors this right. SB5 would also allow jurors to receive a copy of the charges in the case. While Louisiana would be one of the few states to give jurors the right to take notes, more and more jurisdictions are moving in the direction of giving jurors increased tools (notes, questions, pre-deliberation discussions, etc.) to carry out their duties.

For more on this topic go here.