Juries

Juror Disclosure (In re Manriquez)

In Re Manriquez

Petitioner Abelino Manriquez filed an original habeas corpus petition in this court seeking relief from his multiple murder convictions and death sentence. We issued an order to show cause with respect to petitioner’s claim that prejudicial juror misconduct occurred when a juror did not timely disclose a history of childhood abuse. After an evidentiary hearing, the referee found the juror’s nondisclosure was neither intentional nor deliberate, and that the juror was not biased against petitioner; as such, there was no prejudicial juror misconduct. We agree generally with the referee’s findings, and therefore hold that petitioner is not entitled to relief.

Juror Falls for Witness

The NY Daily News has an interesting story about a romance in the courtroom involving a cooperating witness and a juror.  It remains to be seen whether or not this short-lived love affair will be enough to overturn the defendant's conviction of conspiracy, attempted murder, assault, and weapons possession.

nydailynews.com: Juror's courtroom romance with cooperating witness threatened gang member's 2017 conviction

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Randomly Selecting Alternate Jurors

The July/August 2018 edition of the Utah Bar Journal has an excellent article titled Should Alternate Jurors be Selected in a Statistically Fair, Random Method? by Blake P. Hills, Esq. and Brian C. Hills, Esq. The article notes that the current practice in Utah for civil and criminal trials is that the order in which jurors are called designates which jurors will be the alternates. The authors note that there is good reason for not informing alternates of their status prior to that trial as they may have the tendency to not pay close attention to the trial. However, they state that when the alternates are released just prior to deliberations, they often are noticeably upset that they put their life on hold to hear a trial and listened diligently when the likelihood they would deliberate was remote.

The authors propose that the Utah practice should be changed. The jury should be informed from the beginning that if there are more jurors left at the end of the trial than are required to deliberate, the clerk will randomly select the jurors who will deliberate and hopefully reach a verdict. The remaining jurors would be the “alternates.” The authors note that Arizona currently uses this method. They argue that this approach would encourage every juror to attentively hear the evidence while providing a more reasonable explanation for jurors who are released as alternates. They further argue that this approach will improve juror satisfaction and in the long run, may make jury service more appealing to the public.

This suggested approach to managing alternative jurors makes a lot of sense and should be considered by all states not currently using this process. The article starts on page 32 of the link above.  

G. Thomas Munsterman Award

The Center for Jury Studies at the National Center for State Courts is accepting nominations for the G. Thomas Munsterman Award for Jury Innovation. The award is named for G. Thomas Munsterman, founder and former director of the Center for Jury Studies and an internationally renowned innovator in jury systems and research. First presented in 2008, the award was established to recognize states, local courts, individuals, or other organizations that have made significant improvements or innovations in jury procedures, operations, or practices in one of the following categories:

• state or local statutes, rules, or other formal changes 
• jury management or technology 
• in-court improvements 
• other improvements or innovations

Nominations for the Munsterman Award are currently being accepted through August 17, 2018.

Nomination letters should be submitted to:

Email: Greg Hurley

Or

NCSC Center for Jury Studies
Attn: Greg Hurley
300 Newport Avenue
Williamsburg, VA 23185

Please download, complete and submit this form (Word or PDF) with your nomination.

Ceremonial Dagger Query

One of our regular readers is interested to hear if any jury or court administrators have encountered an Amritdhari Sikh, otherwise known as an initiated Sikh, in relation to jury service.

For those unaware, Amritdhari Sikhs have five unbreakable tenets of faith, one of which is the carrying of a kirpan, a small ceremonial dagger, on their person at all times.

The court security policies of the reader prohibit the carrying of 'dangerous items' on court premises. Recently an Amritdhari Sikh was summoned for jury service and upon enquiring about bringing a kirpan onto court premises, was informed he could not. The gentleman was distressed at being made to choose between completing his civic duty (service to community being an important teaching in Sikhism) and adhering to his faith.

The reader is currently looking at how this impacts a jury's ability to be a proper representation of the community, as well as issues around potential discrimination. They are interested to hear if there are other courts which have encountered similar circumstances, and if so, how they approached and handled the situation. Your feedback would be highly appreciated and informative, both in instances where policies or guidelines were changed in response, as well as those which resulted in no change to existing practices after considering the issue.

If your court has experienced this issue before and you would be willing to speak to this reader about how your court responded to it, please send an email to Greg Hurley at ghurley@ncsc.org and your email will forwarded.  

Juror Appreciation Month in North Carolina

The North Carolina Judicial Branch issued the following press release on July 2, 2018:

Chief Justice Mark Martin Proclaims July 2018 as Juror Appreciation Month

RALEIGH — Chief Justice Mark Martin has proclaimed the month of July as Juror Appreciation Month in the state of North Carolina. A ceremonial proclamation signed by Chief Justice Martin states that the purpose of Juror Appreciation Month is “to recognize the importance of jury service to the community.”

“We set aside this time each year to thank and recognize the thousands of North Carolinians who perform this important service to our courts,” said Chief Justice Martin. “Their active role in our system of justice makes it possible for the Judicial Branch to carry out its important mission of administering justice for all."

The Sixth Amendment to the United States Constitution and Article I, Section 24 of the North Carolina Constitution give a person charged with a crime the right to a trial by a jury. Most North Carolina citizens usually come into contact with the Judicial Branch through jury service. Juror Appreciation Month is an opportunity to educate the public and to help raise awareness of the importance of jury service, while extending a small token of thanks to the many citizens who devote their time to the Judicial Branch and to our system of justice.

While some North Carolina judicial districts have held juror appreciation activities in the past, Juror Appreciation Month encourages courts across the state to celebrate. Participation in Juror Appreciation Month is voluntary, and some judicial districts will host their own events in support of the Chief Justice’s proclamation.

Lindy Lou, Juror Number 2

PBS has released an hour long documentary titled Lindy Lou, Juror Number 2. It is a strong statement as to the emotional repercussions that jury service can have on people. The documentary is available free online through August 14, 2018 and is worth watching. The description of the documentary states the following:

For 20 years, Lindy has lived with an unbearable feeling of guilt. Committed to fulfilling her civic duty, Lindy sat with 11 other people on a jury that handed down the death penalty to a Mississippi man convicted of a double homicide. An overwhelming feeling of regret compels Lindy to track down her fellow jurors. A conservative, religious woman from the South, she manages to tackle this topic with humor, an open mind and sincere curiosity.

Improper Excusal of Juror Leads to New Sentencing Trial for Death Row Inmate

In People v. Woodruff, the California Supreme Court reversed a death sentence because of the erroneous exclusion of a prospective juror (D.K.).  D.K.'s removal was based solely on his responses to his juror questionnaire.  When asked about his views on the death penalty in the questionnaire D.K. wrote:

 “I don’t believe in the death penalty,”

When asked on a scale of 1-10 to circle which number corresponded to his views on the death penalty, with 10 be strongly against, D.K. circled 10.  D.K. also wrote that “Men are equals only God can make those choices.” 

However, D.K. checked "no" to the question whether his personal opinion would make it difficult to vote for the death penalty regardless of the evidence.  In addition, D.K. wrote that he "would follow[] the law." 

When asked whether the death penalty served any purpose, D.K. wrote "none."  Finally, when asked whether he would "ALWAYS" vote for the death penalty, or "ALWAYS" vote for life without parole, or consider all the evidence and instructions and impose the penalty he personally felt appropriate, D.K. went with the third option.

In ordering a new sentencing hearing, the court offered the following analysis.

The parties could have, and should have, examined D.K.’s responses further through voir dire. As the trial court noted in its initial decision to deny the challenge for cause, D.K.’s response that he would follow the law “need[ed] to be explored” and there was nothing to be lost by questioning him in voir dire.

“We simply do not know how [this] potential juror[] would have responded to appropriate clarifying questions posed to [him] by the trial court. Had the trial court conducted a follow-up examination of [D.K.] and thereafter determined (in light of the questionnaire responses, oral responses, and its own assessment of demeanor and credibility) that the prospective juror’s views would substantially impair the performance of his . . . duties as a juror in this case, the court’s determination would have been entitled to deference.” (People v. Stewart, supra, 33 Cal.4th at pp. 450-451.)

“[U]nder existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person’s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant’s penalty determination.” (People v. Riccardi (2012) 54 Cal.4th 758, 783, citing Gray v. Mississippi (1987) 481 U.S. 648.) Accordingly, “[u]nder compulsion of Gray, we reverse defendant’s penalty phase verdict.” (Riccardi, at p. 783)

'Finding' a Way to Complete the Ring of Capital Jury Sentencing

 

Maria T. Kolar

Abstract

In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death. First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer—typically referred to as “aggravating circumstances.” Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death. Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be—even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.” 

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring. This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence. This Article traces the Court’s use of the term “finding” in this context—from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016—and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law. This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring—aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law. Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates. There is still much work to be done.

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The Remedy Following a Batson Violation

The Supreme Court of the State of Arizona issued an opinion in State v. Urrea on July 11, 2018. Following a jury trial, Mr. Urrea was tried and convicted of transporting a narcotic drug for sale. During voir dire, the defense raised a Batson challenge and alleged that five of the prosecutor’s six peremptory strikes unlawfully targeted potential jurors with Hispanic ethnic backgrounds, violating the defendant’s Equal Protection rights. After a hearing, the trial court agreed and restored three jurors to the venire and ordered that the prosecutor forfeited three peremptory strikes. The issue on appeal was whether the trial court’s remedy of restoring the impermissibly excluded jurors to on the venire and forfeiting the State’s peremptory challenges was a sufficient remedy or whether a mistrial was necessary.

This was an issue of first impression in Arizona. The high court noted that the U.S. Supreme Court in Batson v. Kentucky stated that “[i]n light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today.” The high court further noted that in this particular case, the jurors that were impermissibly removed were unaware what had occurred as the motions were made outside of their presence. They therefore determined that restoring the three jurors to the venire was an appropriate remedy in this situation and they confirmed the conviction. They also stated that trial courts are in a better position to sculpt an appropriate remedy when a Batson violation is identified, which may include forfeiting peremptory challenges or other measures. 

Jury Nullification Issue Raised to Scotus

The Fully Informed Jury Association “FIJA” filed an amicus brief with the U.S. Supreme Court on June 22, 2018 in Noah Kleinman v. United States. Mr. Kleinman was convicted of various offenses involving marijuana cultivation and distribution. During Mr. Kleinman’s trial, jury nullification was immediately an issue due to protestors outside the courthouse. When the judge instructed the jury prior to deliberations, the following language was included:

“There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.”

On appeal, the Ninth Circuit Court of Appeals found that the instruction was error but that the error was harmless, and they affirmed the convictions. The defendant has petitioned the U.S. Supreme Court in a two issue appeal. FIJA has addressed only the second issue in their brief which is:

Does a trial court’s coercive anti-nullification instruction strip the jury of its essential power to nullify and the criminal defendant of his constitutional right to an independent jury, and does such an error constitute structural error?

The U.S. Supreme Court has not granted certiorari in this case and the government has waived its right to file a response brief. It is unlikely that that certiorari will be granted. However, the brief makes some interesting arguments.  For example, it claims there has been a shift in U.S. courts from "may convict" to "must convict" instructions, and this change has subtly altered the role of juries.  

An Abysmal Appearance Rate

The Virginia Pilot reported on July 11, 2018 that the Norfolk, Virginia Circuit Court only had 29 of 350 summoned jurors appear for a recent felony trial. Circuit Judge David Lannetti referred to the appearance rate as being abysmal. The court has had to continue 7 jury trials in the past year due to jurors failing to appear. The jurisdiction has not employed a consistent follow-up program to manage this problem. Paula Hannaford-Agor, director of the Center for jury Studies said, “They’re probably long overdue for actually taking this seriously.”

Old School

The Times-Tribune published a story on July 8, 2018 about a juror that was hearing a murder trial in 1881 in Scranton, PA. The juror was an alcoholic and began suffering with delirium tremens. The trial judge used an old school solution to try to resolve the problem. Read the article to find out what he did.

Martha’s Jury Duty Scam

The AARP recently released a podcast called Martha’s Jury Duty Scam. It is approximately 34 minutes long and does a good job of describing these scams for listeners. However, the really interesting aspect of this podcast is one of the guests is Frank Abagnale. Abagnale is a very famous confidence man and imposter. His early life was portrayed in Catch Me If You Can (2002), starring Leonardo DiCaprio as Abagnale and Tom Hanks as the FBI agent pursuing him. However, he now works as a security consultant. In the podcast he does a fascinating job of describing the psychology and ploys behind scams. This podcast is worth listening to.

Removing Black Jurors in Mississippi

Here is an excellent report that looks at the District Attorney's office in one Mississippi county that has repeatedly removed black jurors at a much higher rate than white jurors.  The report was thoroughly written and provides insight on how the drafters of the report actually crunched the numbers.  Among other things, the report found that prosecutors were four times more likely to exclude black jurors than white jurors.

features.apmreports.org: Mississippi D.A. has long history of striking many blacks from juries

 

 

Reconceptualizing Jury Nullification: A Spectrum of Extralegal Considerations

Richard Jolly

Abstract

Jury nullification has become an unhelpful concept. Traditionally, it has referred to those instances in which the jury delivers a verdict that is deliberately in contradiction with a clear outcome due to either disagreement with the law or partiality toward the parties. Much debate is built on this traditional model; with some painting nullification as democratic, and others as anarchic. But this model is increasingly outmoded. Procedural devices have made it difficult for juries to exercise their power to nullify in the traditional sense. Indeed, some scholars have claimed that civil jury nullification no longer exists. And in the criminal context, while the Double Jeopardy Clause allows some forms of nullification, the Supreme Courts’ recent decision in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) places new restrictions there as well. 

This Article proposes a more capacious understanding of nullification in which it is conceptualized as an extreme injection of extralegal considerations into the jury’s verdict. It further contends that all jury verdicts fall upon a nullification spectrum in which more or fewer extralegal considerations influence the verdict. This spectrum is already implicit in the rules and case law, but has been overlooked in the literature. This new model of nullification allows us to reconsider the ways in which civil and criminal juries exercise their institutional power both to bolster and undermine the law. This is especially true in the civil context, as juries may manipulate outcomes in private disputes with greater minutiae than they may in criminal disputes. Finally, the model allows us to better understand the continued vitality of an increasingly sidelined institution

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Collateral Consequences as a Consideration in the Right to a Jury Trial Calculation

On June 21, 2018 the District of Columbia Court of Appeals sitting en banc rendered a decision inJean-Baptiste Bado v. United States. Mr. Bado appealed his conviction for misdemeanor sexual abuse of a minor following a bench trial. As the offense was only punishable by incarceration of up to 180 days, he was not eligible for a trial by jury under the Sixth Amendment. However, the conviction subjects Mr. Bado to extradition as a collateral consequence. He moved for a jury trial and made all of the appropriate arguments for the same, but his motion was denied. The issue as stated in the opinion is “whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days.” The District of Columbia Court of Appeals held that “the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury.” This case is interesting because it expands the Sixth Amendment right to a trial by jury.

Jury Selection and Implicit Bias

In the Spring 2018 edition of Voir Dire there is an article by Melissa Loberg titled,Jury Selection Post 9-11: Uncovering Bias against Arabs and Muslims. She makes the point that both implicit and explicit bias against Arabs and Muslims can extend to people who are not either of those categories but fit the stereotype. Additionally, research has demonstrated that bias is more pronounced in communities that have proportionally few or no Arabs or Muslims in their localities. The author suggests using a multi-prong strategy to ferret out bias which could include traditional voir dire questions, written case specific juror questionnaires, social media research on jurors and utilization of a ranking system to help decide on the use of peremptory challenges. She also notes that jurors that admit they have a bias are far less concerning than those with a bias that fail to admit it. This is an interesting article worth reading.

Juror Questionnaire in the Manafort Case

On June 21, 2018 the Government’s Motion for the Use of a Juror Questionnairewas filed in the United States District Court for the Eastern District of Virginia. The motion makes the argument that a written questionnaire will help the government identify bias, more effectively use its peremptory challenges and as a result, receive a fair trial. The motion states:

The advantages of written questionnaires include the following:

• Written questionnaires are more private, and encourage honesty, particularly about sensitive issues involving bias and prejudice that are critical in this case.
• Written questionnaires reduce the influence of “evaluation anxiety,” which causes potential jurors to temper their answers because they know they are being evaluated by the court and the attorneys as they speak.
• Written responses are not influenced by answers given by other members of the venire.
• Written responses revealing prejudicial information seen or heard by one potential juror will not taint the entire jury pool as an oral response might.
• Written responses are not influenced by the characteristics or qualities of the interviewer.
• Written questionnaires provide more information about each potential juror than would be obtained in oral questioning, particularly when open-ended questions are used, and in less time.
• Written questionnaires streamline the jury selection process by allowing the court and counsel to focus more quickly on areas of concern during voir dire.

New Mexico Law Review

Ben Olson published an article in the Summer 2018 edition of the New Mexico Law Review titled Let’s Call The Poll Thing Off: Partial Verdict Forms As A More Reliable Way To Enforce The Double Jeopardy Clause When Juries Deadlock On Counts With Lesser Included Offenses. The articles addresses situations when a jury may “acquit” a defendant on the top level of an offense, for example a first degree murder. However, the jury hangs on a lessor included charge, for example a second degree murder. The article describes whether in a subsequent retrial, the state may proceed to seek a conviction on the top count or is barred by the Double Jeopardy Clause. This is a very interesting issue for which there isn’t a well-defined answer from a national perspective. The abstract to the article states:

The practice of charging lesser included offenses often leads juries to acquit on some levels of a given count but deadlock on others, but many states do not give effect to such acquittals and instead record only the deadlock for the entire count. Because the Double Jeopardy Clause only attaches to formally recorded verdicts, defendants’ double jeopardy rights will thus often depend on whether and how a jury is afforded the opportunity to give effect to such partial acquittals. Some states expressly forbid such partial acquittals, a practice deemed constitutional by the United States Supreme Court. New Mexico not only allows partial verdicts, but also takes the unusual approach of requiring trial courts to poll juries which deadlock on counts with lesser included offenses to see whether the jury voted to acquit on any level of the offense. This comment argues that New Mexico is correct to allow partial verdicts on lesser included offenses, but that it has not chosen the proper means to do so. Polling is too imprecise to protect defendants’ double jeopardy rights. Instead of polling, the Court should require that juries be provided partial verdict forms, which would enable the jury to mark “guilty” or “not guilty” on each level of a count with lesser included offenses. This small change in the verdict form would strengthen constitutional protections while promoting judicial efficiency and ensuring more accurate verdicts.

New Juror Orientation Video Launched in Victoria, Australia 

Juries Victoria, which operates in the south-eastern Australian state of Victoria,launched its new juror orientation video earlier this month. This video will be used in the orientation of over 20,000 citizens who attend for jury service in either Melbourne or one of 12 regional courts each year.

Like most jurisdictions, jurors in Victoria are given an orientation at the start of their attendance, explaining what their service will entail, and what they can expect throughout their juror journey.

The previous video, which had been in service since 2005, had become quite dated and obsolete, containing numerous elements of the jury process that had since been altered. It also failed to properly address many issues currently facing jury administrators everywhere, such as the ubiquity of and impact technology, social media, and Google can have on a jury.

The new orientation video is a modern, engaging tool for informing jurors. Split into three short parts, it allows the Jury Pool Supervisor to reinforce the key messages and answer any questions or concerns jurors might have after each part. This was found to increase juror engagement and reduce instances of people ‘zoning out’.

The first thing you’ll notice about the video is that it’s animated. In the initial development, Juries Victoria consulted experts who suggested animation was a far more effective medium than live-action for training and education videos, helping better deliver the key messages to jurors. Animation also proved easier to produce, avoiding the need to cast roles and close down the jury area and a courtroom for filming. And importantly, animation is more future-proof, allowing easier editing in response to any changes to procedures or legislation that might occur further down the track.

The video represents a key step in Juries Victoria’s rebranding process to reflect the modern, juror-centric focus of its work. Based on the success of the new orientation video, Juries Victoria is looking to apply the same animation style in developing short, 90-second videos aimed at helping answer some of the most common questions they encounter.

If any readers would like to discuss the new video with Juries Victoria, they are more than welcome to contact Cameron Ballinger viacameron.ballinger@juries.vic.gov.au

Cost of the Cosby Trial

The Times Herald reported on June 28, 2018 that the Bill Cosby trial cost the public $219,000. However, that figure is limited to the actual costs for housing the sequestered jury and the costs of overtime for a number of justice system employees. That figure may increase as other actual costs are identified. District Attorney Kevin R. Steele previously said he will seek to force Cosby to pay for both his first and second trial when he is sentenced.

Grand Juror Suing to Be Allowed to Talk About Grand Jury Process

Missouri, like most jurisdictions, prohibits grand jurors from discussing evidence presented before the grand jury.  This in turn has led one grand juror to bring a legal action to allow him or her to talk about the Darren Wilson grand jury which declined to criminally indict Darren Wilson for killing Michael Brown.  According to the article below, the grand juror wants to challenge the contention made by the St. Louis County Prosecuting Attorney Robert McCulloch that the grand jurors were unanimous in their decision not to charge Darren Wilson in Brown’s death.

STLtoday.com: Judge will allow federal suit by grand juror in Darren Wilson case to proceed