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.
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