Ray Allen, who had an illustrious career in the NBA, was fined $1,000 for missing court after being selected to serve as a juror on a criminal trial. According to Allen's attorney, there was a misunderstanding about the actual start date for the trial. The fine went to a charity of Mr. Allen's choosing.
MiamiHerald.com: NBA legend Ray Allen skips jury duty. Miami judge calls foul, slaps him with fine
Law 360 reports on last week’s jury selection in the trial of former Theranos executive Ramesh “Sunny” Balwarni in a California federal court. Prospective jurors were questioned about the possible effects on their judgment from the recent jury conviction of Balwani’s cohort, Theranos CEO Elizabeth Holmes. After four hours of open court questioning of prospective jurors, the defense team moved to strike the entire venire panel and start all over with a fresh one. They argued that the jury pool had been tainted by prospective jurors who tried to recall aloud various news stories, documentaries, podcasts, and YouTube videos that mentioned Holmes’s trial and Theranos’s rapid rise and swift fall from grace in 2016. (One prospective juror said he may need to leave the trial to fight in Ukraine.). Defense counsel Jeffrey Coopersmith listed several statements made by jurors about the once high-flying startup and its top brass during their questioning—including comments by a prospective juror who repeatedly called the company a fraud. Coopersmith said those open court statements were so prejudicial that they tainted the pool of jurors listening and that the judge must dismiss the panel for Balwani to get a fair trial. U.S. District Court Edward Davila denied the motion.
In People of Michigan v. Davis, the fiancée of the defendant was a gallery observer. On the second day of trial, she had a benign interaction with a juror. Once this was reported to the trial judge, he prohibited all courtroom observers from the rest of the trial except the victim’s mother. Although the trial court did not take any further action to effectuate this closure, the Michigan Supreme Court held that the unjustified closure violated defendant's public-trial right and constituted plain error requiring reversal.
Pending in the current session of the legislature is Senate Bill 128. It was intended to improve how peremptory strikes are policed under the Batsondoctrine. Specifically, the bill provides a list of presumptively invalid reasons for peremptory challenges, including:
The bill would also require appellate courts to hear peremptory challenge cases de novo and review a trial court's factual findings for substantial evidence. The Journal reports the sponsor of SB 128 has withdrawn the bill from consideration indefinitely because of failure to reach a compromise with the Colorado District Attorneys’ Council.
The trial of four men accused of plotting to kidnap Governor Gretchen Whitmer has been underway in Grand Rapids since last week. However, the Detroit News reports Chief U.S. District Court Judge Robert Jonker has postponed the trial because an “essential trial participant” has tested positive for the coronavirus. The newspaper said, “Few prospective jurors wore the protective gear during jury selection last week and almost nobody wore masks during the first three days of trial.”
An op-ed piece by former N.Y. state and federal prosecutor Tali Farhadian Weinstein appeared yesterday in the New York Times ($). He criticizes a question directed to prospective jurors in the Ghislaine Maxwell trial. As noted in a previous issue of the Jur-E Bulletin, Maxwell’s lawyers are seeking a reversal of her conviction because one juror did not answer this question in the affirmative, “Have you or a friend or a family member ever been the victim of sexual harassment, sexual abuse, or sexual assault?” Days after verdict was delivered, the court discovered the juror told his fellow deliberating jurors about his own victimization. Consequently, the judge questioned the subject juror about his failure answer that question affirmatively. The author asserts the standard voir dire question unnecessarily causes humiliation and disrespect of a juror. Weinstein suggests a better line of questioning. Readers might try to come up with additional better questions also.
Jury consultant Christina Marinakis has a very thoughtful piece in the National Law Review discussing how she performs her job.
National Law Review: Can Jury Consultants Predict How a Juror Will Vote in Deliberation?
In State of Washington v. Norman, a jury found the defendant guilty of assault. During deliberations the foreperson informed the court that juror 9 was punching his face during stressful disagreements among his colleagues. The trial judge with the attorneys present conducted an interview with the subject juror asking him to describe his feelings and whether he thinks his behavior would occur again. Juror 9 replied, “I'm more prepared to handle and deal with it, and if I feel like it is getting to that point again, I will simply ask the jury for a break and take a small break and cool down so it doesn't occur again.” In lengthy Q & A recorded in the appellate opinion, the judge then separately interviewed two other jurors, including the foreperson, asking whether, if the subject juror remained on the jury, their deliberations would be less fulsome and affect reaching a verdict. Both jurors answered in the negative—one with a caveat that it is hard to predict whether he will act that way again. At the prosecutor’s request and over defense objection, the trial judge dismissed the juror due to fears about his inhibiting future deliberations. The appeals court reversed the conviction, concluding the disturbed juror had “an extreme reaction to the stressful deliberation process where the trial court was aware that there was a reasonable possibility that the stress arose from the juror's views on the merits of the case. The trial court dismissing Juror 9 under these circumstances violated Norman's right to a unanimous verdict. Also, the removal may have suggested to the reconstituted jury that the court preferred guilty verdicts, violating Norman's right to an impartial jury.”
On next Tuesday, the Berger International Speaker Series at Cornell University Law School presents “The Start of Trial by Jury in Argentina.” The free webinar will present the results of a multiyear study of the new system of trial by jury in the province of Neuquén, Argentina. The province introduced trial by jury to a community with no history of lay participation in legal decision making. Following each trial and with the cooperation of the trial courts, researchers surveyed jurors, trial judges, prosecutors, private attorneys, and defense attorneys who participated in jury trials; conducted focus groups of jurors; and interviewed judges and lawyers. The project offered a unique opportunity to study the beginnings of a new legal institution and to observe how it is experienced by both lay citizens and by legal professionals. Most jurors had little to no knowledge about the jury system before they were summoned to serve. Despite their lack of familiarity with the jury, jurors reported that their involvement as decision makers led them to adopt more favorable views about the jury system, the judiciary, and the courts. Many jurors exited with a sense of pride. Legal professionals also reported generally positive views, although lawyers reported the need for more training in oral advocacy and trial presentation. The results can have both theoretical and applied significance. They can inform scholarly debates in the law-and-society field about the introduction and success of legal transplants. Any future introductions of lay participation may well gain insights from the study with respect to design, implementation, and the training of legal professionals. Registration can be accomplished here.
That is the title of an article written by Southwestern Law School professor Richard Lorren Jolly. He asserts it is time to reassess jury nullification, which he describes as a largely antiquated institutional power. He proposes “a more capacious understanding” of jury nullification, conceptualizing it as the routine injection of extralegal considerations into the jury’s decision making. Jolly contends that all jury verdicts—criminal and civil—fall upon a nullification spectrum in which such considerations exert greater or lesser influence regardless of the jurors’ intentions or whether the verdict appears reasonable on its face. It is available at the Pepperdine Law Review, 49 Pepp. L. Rev. 341 (2022).
Law 360 ($) reports U.S. District Judge Jed S. Rakoff stands by his judgment to dismiss Sarah Palin’s lawsuit before jury deliberations despite jurors receiving push notifications of his action during their deliberations. Author Rachel Scharf writes, the judge’s 68-page opinion explained he "was not familiar with the term 'push notification"' when attorneys initially raised the issue during deliberations, and that he "did not fully appreciate the potential for jurors to be involuntarily informed about the court's intended ruling through their smart phones." In spite of this "unfortunate" incident, Rakoff believes jurors when they say that knowledge of the dismissal ruling did not influence their deliberations or the resulting verdict. "While some outsiders, totally unfamiliar with the exceptional jury in this case, have been quick to assume otherwise, the court knows of no reason why the highly conscientious citizens who served as jurors in this case would be so firm that they were unaffected by this information unless it were true." He added it does not actually matter whether the verdict was rightly decided, given that procedurally it has been supplanted by his dismissal ruling. Judge Rakoff said he merely allowed the jury to continue deliberating to avoid a retrial if his decision were reversed on appeal.
In United States v. Tsarnaev, the U.S. Supreme Court (6 to 3) last week overturned a First Circuit Court of Appeals decision vacating the defendant’s death sentence. The circuit court, exercising “supervisory authority” of trial practices, reasoned the district court abused its discretion during jury selection by declining to ask about the kind and degree of each prospective juror’s media exposure, as required by that court’s decision in Patriarca v. United States, and it abused its discretion during sentencing when it excluded crucial evidence in the sentencing phase. Justice Clarence Thomas wrote the majority opinion, essentially saying “supervisory authority” cannot be used to circumvent or supplement established legal standards for voir dire questioning
The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious conviction in American jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the anti-discriminatory Batson doctrine has given religious beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. On the other, they seek to reinforce the primacy of a secular legal perspective on justice—even if it conflicts with a prospective juror’s deeply-held religious beliefs and the broader imperative to build inclusive juries.
The open question is how legal actors—both judges and lawyers—should navigate the ambiguous position of religion in voir dire to build juries. This Article draws on original empirical research with judges and lawyers to show that in today’s legal system the treatment of religious conviction is strikingly inconsistent, guided by personal bias, and affected by misunderstandings of the particular features of various religious traditions. To address this arbitrary treatment of religion, this Article outlines a new approach to navigating religious convictions in jury selection proceedings. Special attention is paid to the prevention of exclusion, as well as the practice of empaneling jurors with certain religious commitments to gain a strategic advantage. The Article concludes by making the case that insofar as the legitimacy of the American jury system hinges on the inclusive involvement of a diverse—and diversely religious—public, it must find a way to reconcile religious convictions with lay participation
The Sun Journal’s description of State of Alaska v. Downs is a case study in how intentional actions of a trial judge combined with unintentional technical glitches can lead to a First Amendment side battle. The recent criminal trial of Mr. Downs was conducted in person but, because of COVID public health precautions, there were no observers inside the courtroom. Instead, the trial was livestreamed. On the first day of trial, the judge prohibited broadcasting the voir dire to “protect juror privacy.” Once the jury was selected, the three-week trial suffered numerous black outs of online coverage. In addition, the judge announced he would take discretionary breaks while evidence was being presented “in order to preserve the privacy and dignity of the alleged victim” and that he would not announce when the livestream restarts. Instead, the public was told “you will need to refresh the page to get back into the courtroom.” Several news outlets raised vigorous concerns in written filings to the judge during the trial—all of which resulted in at least regular audio-only coverage of the trial. The Sun Journal piece did not report the outcome of the trial. If there was a conviction, we may learn more from a possible appellate record.
After several years of unsuccessful legislative efforts, the Washington Post reports Maryland is “poised” to repeal the state’s law requiring exclusion of felons and misdemeanants from jury duty. Both the Maryland House and Senate have passed slightly different versions of the bill. There remains the task of reconciling those differences in conference. If a law is eventually adopted, Maryland will join a small group of states trying to make juries more diverse and, according to the Prison Policy Initiative, make a dent in the number of citizens (twenty million) who are barred from jury service due to prior convictions.
The National Law Journal ($) reports the first trial of a defendant who participated in the January 6 incursion of the Capitol will begin on February 28 in a Washington, D.C. federal courtroom. The courthouse is located several hundred yards from the Capitol dome in a jurisdiction whose electorate cast a mere 10% of its vote for Donald Trump. Pretrial questionnaires are being used to discern juror bias. Stephen Saltzburg, a George Washington University Law School professor and co-director of the school's litigation and dispute resolution program, is quoted saying, "The challenge is going to be for whoever is presiding, judges are going to have to be sure that the voir dire process is adequate to remove the potential jurors who really have their minds made up about what happened on January 6 and who are inclined to hold every single person who was there equally responsible.”
In another high-profile case involving political violence allegations, a federal judge in Grand Rapids, Michigan prepares for jury selection on March 8—a case involving several men charged with plotting to kidnap Governor Gretchen Whitmer. The trial is expected to last five weeks and may include more than 400 exhibits and nearly 50 witnesses. MLive.com quotes U.S. District Court Judge Robert J. Jonker to say: “I don’t want the trial to become a referendum on whether the trucking convoy in Ottawa is good or bad, or whether what happened on Jan. 6 is an insurrection or legitimate political discourse. I want the focus to be on what happened in this case.”
In Budd v. Kaiser Gypsum Company, Inc., Kaiser challenged a plaintiffs’ verdict for several reasons, including the Washington State trial court’s summoning policy to exclude citizens 60 years of age and older during the pandemic. The defense asserted the special summoning policy violated statutory randomness requirements and constructively excluded a cognizable class. An appellate panel rejected the claims. With respect to randomness, the panel reasoned the court substantially complied with the relevant statute. Regarding constructive exclusion of a class, the appeals court found the exclusion was not “systemic.” After reading the lengthy decision, one might wonder, “Is this a conclusion begging for a reason?”
The existence of experts raises a host of interesting questions in social, legal, and political epistemology. This article introduces and discusses interested experts – people who are experts on some topic, but who also have a distinct set of values and preferences regarding that topic, so that they are not well-described as “disinterested” parties. Interested experts raise several distinct problems in social, legal, and political epistemology. Some general questions arise: can we rationally or justifiably form beliefs relying on interested expert testimony? Do they constitute knowledge? Under what circumstances? This article focuses on a specific question in legal epistemology: should interested experts be allowed to serve on juries and, if so, should it be permissible for lawyers to strike them from the pool of potential jurors? Concentrating on this question will provide insight into the more general questions concerning the epistemology of testimony with respect to interested experts, while also providing concrete recommendations for jury reform to improve the epistemic performance of juries.
At present, Maryland, like most states, prohibits felons from sitting on juries. In fact, Maryland goes further than most states and bans anyone who has served more than one year in jail. This prohibition may soon come to an end because the Maryland Senate has given preliminary approval to Senate Bill 30 which overturns the state's ban save for convictions involving witness or jury intimidation. Similar legislation has been introduced in the Maryland House except it does not include the carve out provisions for witness or jury intimidation. The two bills need to be reconciled and then sent to the governor for his signature in order to become law.
To read more about this story go here.
In a 4 to 3 ruling last week, the state high court in State v. Clegg determined the trial judge improperly denied a Batson claim. The lengthy and scholarly opinions by majority justices determined the trial judge, among other things, did not properly compare the questioning of struck jurors with retained jurors. Associate Justice Anita Earls, in a concurring opinion, acknowledged the supreme court has ineffectively enforced the Batson doctrine. She admitted the Clegg case is the first time the court has ever found a Batson violation, citing Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957 (2016).
The Washington Post describes the demographics of the jury empaneled this week in the prosecution of Gregory McMichael, Travis McMichael, and William “Roddie” Bryan. (It took over a week to complete jury selection from 1,000 citizens summoned from 43 counties.) On Monday U.S. District Judge Lisa Godbey Wood seated the final 12-member jury composed of eight White people, three Black people, and one Hispanic person — a more diverse panel than in the state murder trial. Wood said she expects the trial to last between 7 and 12 days.
In United States v. Crittenden, a divided panel of the US 5th Circuit supported the trial court’s decision to overturn a jury verdict because the evidence failed to show that Crittenden had knowledge of the nature of the controlled substance he possessed as was required to convict him of possessing methamphetamine with the intent to distribute. In other words, it would have been “a miscarriage of justice to let the verdict stand.” The case is especially interesting due to the dueling views in the majority and dissenting opinions. The majority concluded the trial judge “did not simply disregard the jury’s verdict in favor of one it felt was more reasonable.” But, rather, it “cautiously reweighed the evidence, determined that a mistake had been committed, and permissibly granted a new trial to ‘prevent a miscarriage of justice.’” In a vigorous dissent, Judge Gregg Costa pointed to “beaucoup evidence” showing Crittenden knew he possessed a controlled substance. He found the trial judge was most concerned about the 292-to-365-month mandatory sentence resulting from a conviction. His dissent closes with, “[T]he district court—now with our court’s blessing—concluded that the cross-section of the El Paso community that found Crittenden guilty committed a miscarriage of justice. (I guess I too would have been party to that miscarriage of justice as I think the jury got it right.) This judicial override of the jury’s verdict disrespects their service.”
In Callaham v. United States, the D.C. Court of Appeals was faced with review of a robbery conviction in which the deliberating jury sent multiple notes to the trial judge indicating they were deadlocked followed by notes in one instance asking these questions: “What is [p]roof of taking without right? How do we know [he] didn’t have a right to property? What is the basis of knowing whether or not the defend[ant] had right to property or not?” After the court instructed them to continue deliberating, the jury sent another note saying, “After re-watching and reviewing the evidence, and after further intense discussions, we are still at an impasse. We carefully considered and re-considered each of the elements of the allegations [and] . . . [w]e are unable to reach a unanimous verdict.” The court denied a defense motion for a mistrial and gave the standard anti-deadlock Winters instruction. Thereafter, the jury announced a guilty verdict. But during final jury polling, one juror stated disagreement with the verdict. Prompting the trial judge gave a different anti-deadlock instruction resulting in a guilty verdict. On appeal, the high court took the position it must assess the risk of juror coercion “from the jurors’ perspective,” inquiring into both “the inherent coercive potential of the entire situation before the trial court and the ameliorative or exacerbating impact of the judge’s actions in response to that situation.” The panel stated, “Taking into account this ‘entire situation,’ we conclude that the coercive potential was high at the time the trial court opted to deliver another anti-deadlock instruction."
There’s a truism, “We all have a lot more in common than differences.” The Western Australian news service WAtoday describes a smorgasbord of instances where Australian juries are facing security fears or demonstrating internal misbehaviors not dissimilar from jury trials in the USA.
As some may know, former Governor Palin was unsuccessful in her recent libel suit against the NY Times. However, prior to rendering their decision on Tuesday, several jurors learned beforehand that Judge Jed S. Rakoff, the presiding judge, was going to dismiss the case if the jury found in Palin's favor. Jurors discovered this information from push notifications from news websites on their smartphones. I would not be surprised to see juror misconduct as at least one issue on appeal.
To read more about this case go here.