Silence as Evidence of Juror Rehabilitation
The Supreme Court of the State of Colorado rendered an opinion in People v. Clemmons on September 11, 2017. During voir dire conducted by the defense counsel, three jurors indicated that they would have difficulty finding the defendant not guilty if the defendant failed to testify. Their position would unlawfully give a negative inference to the defendant’s use of his right to remain silent. The trial judge stepped in and instructed the jury on the prosecution's burden to prove the case and the defendant’s right to remain silent. She then asked if any jurors would find the defendant guilty if the prosecution failed to meet its burden but the defendant failed to testify. The three jurors at issue did not respond. The defense counsel moved to remove them for case, the motion was denied and they were removed using peremptory challenges.
The issue in the case was whether the trial court abused its discretion when it relied on three prospective jurors’ silence in response to questions asked of the entire venire to conclude that those jurors had been rehabilitated after they had previously expressed a preconceived opinion about the defendant’s right to remain silent. The Supreme Court of the State of Colorado held that a prospective juror’s silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court’s conclusion that the juror has been rehabilitated when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. They further concluded that the context surrounding the challenged prospective jurors’ silence in this case supported the trial court’s conclusion that they had been rehabilitated, meaning that the trial court did not abuse its discretion in denying defense counsel’s challenges for cause.
Juror Questionnaire in Benghazi Trial
The Washington Post reported on September 12, 2017 that U.S. District Judge Christopher R. “Casey” Cooper has approved the use of a 130-question juror questionnaire in the trial of Ahmed Abu Khattala. Abu Khattala is accused of being the mastermind behind the Benghazi terrorist attacks. The 28-page document probes into religious and political views as well as experiences with terrorism. In-person voir dire will begin next week.
Juror Jailed for Internet Research
The International Business Times reported on September 14, 2017 that juror Lionel Tweed has been jailed for four months for violating a British trial judge’s order to refrain from case related internet research. Mr. Tweed was hearing a murder trial when the incident occurred. The ironic aspect of this case is that Mr. Tweed also researched the penalty for jurors violating the court’s order by doing outside research.
Juror’s Remorse?
Fox Kansas City published a story on September 13, 2017 about juror Lindy Lou Isonhood. In 1994 she was a member of a jury that sentenced Bobby Wilcher to death in a Mississippi court. Subsequent to that, she visited the defendant in prison to ask for his forgiveness and visited the other members of the jury to ask them if they were troubled by the verdict. She was also featured in a documentary which was released in 2017 titled, Lindy Lou, Juror #2. The trailer for the documentary is available online and is very compelling.
Scope of Misconduct
The United States Court of Appeals for the Sixth Circuit issued an opinion in U.S. v. Ricky Lanier and Reshina Lanier on September 7, 2017. During deliberations in a fraud trial, Juror No. 11 called assistant district attorney Theresa Nelson to report a “problem” with deliberations. Nelson was a social acquaintance, a state prosecutor and was not involved with the trial. Nelson told her to report the problem to court staff and she notified the trial judge about the conversation. After the jury had reached guilty verdicts, the defense moved for a mistrial or permission to interview the jurors. The trial judge denied the motions. Counsel for one of the defendants developed evidence that there was at least one more communication between Nelson and Juror 11 which was not reported to the trial judge.
The defendants appealed claiming that they should have been permitted to interview the jurors. The United States Court of Appeals for the Sixth Circuit indicated that the trial court had an obligation to investigate a colorable claim of external influence on the jury to determine whether any external influence occurred and, if so, whether it was prejudicial. They further stated that not every claim requires a hearing to investigate, “only when the alleged contact presents a likelihood of affecting the verdict.” In this case, the determined that there was a likelihood that the verdict was affected so the case was reversed and remanded for a hearing to determine the extent of the influence and it prejudicial effect.
However, the interesting thing about this case is in the following sentence in the opinion:
And because no one has ever questioned any member of the jury, we do not know the extent of the juror’s misconduct in contacting third parties and discussing the case with outsiders or what impact the juror’s misconduct involving extraneous communications had on the rest of the jury.
The implication is that once colorable misconduct is alleged, the aggrieved party should be permitted to interview jurors and investigate for conduct that goes beyond the initial allegation.
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