Jury Selection System in Alaska Faces Challenge
Eye on the Arctic reported on May 25, 2018 that the jury selection system used in Alaska has been challenged in the appeal of Teddy Kyle Smith. Mr. Smith was convicted of attempted murder and sentenced to 99 years. Prior to the trial, he challenged whether the jury pool to be used in his case would be drawn from a fair cross section of the community as it only included people within a 50-mile radius of the courthouse. The newspaper stated that this is a common practice in Alaska. However, this practice excludes many people that live in villages, and villages have a higher percentage of Alaska native residents. The state argued that the costs and burdens of bringing jurors in that live more than 50 miles from the courthouse is prohibitive. The Jur-E Bulletin will report on the Alaska Court of Appeals decision in this case when it is released.
Toward a Civil Jury-Trial Default Rule
Richard L. Jolly, a research fellow to the Civil Jury Project at the New York University School of Law recently published a law review article in the DePaul Law Review titled Toward a Civil Jury-Trial Default Rule. The article explores a recent recommendation by Justice Gorsuch and Judge Graber to the Advisory Committee to adopt a jury-trial default rule. Currently in federal court litigants must affirmatively request a jury trial in civil cases. The author notes, ¨ The jury-waiver default emerged at the federal level concomitantly with the Federal Rules of Civil Procedure and the merging of the courts of law and equity.¨ It was created to increase the efficiency of the system and to limit the number of civil jury trials. However, as it has been increasingly recognized within the legal community that civil jury trials are an essential component of the system, it is time to explore alerting the jury-waiver default. This is a well written article that is worth reading.
Limitations on Juror Interviews in Habeas Corpus Cases
Kathryn Miller, a Clinical Teaching Fellow at the Death Penalty Clinic of the UC Berkeley School of Law published an article in the most recent California Law Review titled, “The Attorneys are Bound and the Witnesses are Gagged: State Limits on Post-Conviction Investigation in Criminal Cases.” This is a broad article that covers a number of restrictions concerning attorneys' ability to conduct post-conviction investigations. However, in the context of jurors, the author takes a very unique look at states that have prerequisite barriers before habeas attorneys can interview trial jurors. At the end of her article, she has a chart which identifies each state and the barrier. She also makes some strong arguments why barriers are inappropriate. To give Jur-E Bulletin readers a sense of Professor Miller’s article, the following paragraph is included from pages 148-149:
The most common limitation that state actors impose on post-conviction defense investigation is the requirement that counsel obtain permission to conduct interviews with jurors. Rarely found in state statutes, juror restrictions most frequently appear when local court rules or individual trial judges impose them—often at the behest of the prosecutor. Reviewing courts frequently uphold these restrictions, typically finding that they are part of a trial judge’s inherent powers and a proper exercise of the judge’s discretion. Many courts condition their grant of permission on the defendant’s ability to show “good cause,” which they interpret more or less strictly depending on the jurisdiction. While some jurisdictions interpret good cause to mean a “good faith belief” that misconduct occurred, others go a step further, requiring that the defense proffer evidence of admissible juror misconduct—a high standard given counsel’s inability to speak with jurors. Other states do not restrict interviews, but require a good cause order to release the jurors’ identifying information to post-conviction counsel.
New Jury Voting Secrecy Law in Louisiana
The Times Picayune reported on May 26, 2018 that Louisiana’s Governor John Bel Edwards signed Act 335 into law. The Act will keep the juror voting secret in criminal cases, at the discretion of the trial judge. This is important because Louisiana does not require unanimous verdicts in non-capital criminal cases. The statute would allow attorneys to still poll the jury post-verdict but the poll would be done in writing, may be sealed in the court record, and if sealed the names of the jurors would be statutorily redacted if the court ever authorized opening the document. The statute is effective August 1st. It is possible the new law will be moot if voters decide to require unanimous verdicts when they vote in November. The most interesting thing about this article is the newspaper asserts that they ran a story which analyzed juror voting patterns and demonstrated that race plays a role in the decision to convict or acquit.
Odd Case of Jury Misconduct
The Naples Daily Times reported on May 24, 2018 that Kiereek Seymour was granted a new trial in Collier County, Florida. Mr. Seymour had been convicted of “felony fleeing while DUI” and related charges. In a post-trial hearing it was determined that the jury had found a “law book” in the deliberations room and used it in deciding their verdict. The book had been inadvertently left behind by the bailiff who had been studying for the Sergeant’s exam. It contained statutes and jury instructions.
Crossing the Line in Voir Dire
The Utah Court of Appeals rendered an opinion in State v. Williams on May 24, 2018. Mr. Williams was tried by a jury and ultimately convicted of various sexual offenses relating to his three daughters. The court noted that although there was significant evidence presented against Mr. Williams, there were also numerous inconsistencies in the testimony. The issue on appeal was whether prosecution’s question in voir dire was plain error by arguing the case and bolstering the testimony of the witnesses? The court noted that this issue is an issue of first impression in Utah. To truly understand the nature of the prosecutor’s questions in this case, Jur-E Bulletin readers will need to read the opinion. However, the appeals court stated the following:
Additionally, the prosecutor devoted much of her juror examination to making statements and posing rhetorical questions rather than inquiring into the prospective jurors’ thoughts and attitudes, including:
- Making proclamations about the general pattern of sexual abuse, such as, “[I]s a child abused in secret or somewhere where it is not secret? So that’s kind of a no brainer, right?”
- Telling the venire its options for whom to believe at trial. “So who are the only two people in the world who really know what really happened? Just those two.”
- Indicating when prospective jurors gave answers she liked and praising them, showing (despite her opening remarks to the contrary) that there were indeed right and wrong answers. “Okay. Very good. Very good.” “There we go. There we go.” “Yeah, exactly.” “That’s exactly right.”
The Utah Court of Appeals held that the prosecutor’s questioning was plain error, and they reversed and remanded the case. They stated:
The process employed by the prosecutor in this case was not designed to find out what jurors’ thoughts or attitudes were, but instead served as an attempt to influence the jury panel—in effect intentionally tainting it with a bias favorable to the State’s case. And while the prosecutor never couched her questions or comments by reference to a specific victim, it is clear, given the context, that the prosecutor was essentially arguing the State’s case and inappropriately bolstering the anticipated testimony of the alleged victims.
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