Juries

Manafort's Change of Venue Motion

Here is Paul Manafort's change of venue motion for his upcoming second trial involving his work as a lobbyist in the Ukraine.  As some are aware, Manafort has already been convicted earlier this month on tax and bank fraud charges.  Manafort is attempting to get his second trial, set to occur in D.C., moved to Roanoke, Virginia.  His attorneys have cited the usual reason for a change of venue i.e., pretrial publicity.  However, after reading the motion, I also noticed that they are using the 2016 election results as grounds to move the trial.  According to the motion,

[i]t is not a stretch to expect that voters who supported Secretary Clinton would be predisposed against Mr. Manafort or that voters who supported President Trump would be less inclined toward the Special Counsel. Notably, however, voters in the Washington, D.C. voted in favor of Secretary Clinton (90.9% Clinton; 4.1% Trump). This split is more balanced in other places such as Roanoke, Virginia,
located in the Western District of Virginia. 

It is highly doubtful that the court will grant Manafort's request. 

Push for Unanimous Juries

As discussed on this blog numerous times, efforts are underway in both Oregon and Louisiana to prohibit non-unanimous jury verdicts.  At present, Oregon and Louisiana are the only two states that allow split verdicts in criminal trials.  These reform efforts have garnered some unlikely support as illustrated by the article below.  While many to include conservative Christian groups favor reforming the jury system in Louisiana, there are a few who don't want to see any changes made.

Nola.com: Leading conservative Christian group will work for unanimous juries vote

Diluting Prejudice

Judge David John Harvey

 

Abstract

This paper is about the steps that may be taken to dilute but not totally eliminate the prejudicial effect of on-line material that relates to a defendant about to stand trial. It is posited upon the fact that jurors, despite strong judicial directions, will go on-line to seek out information relevant to the case that they are trying. The solution lies in the use of what could be described as “take-down” orders whereby material is removed from websites during the course of the trial to eliminate or dilute any prejudice that may otherwise arise, along with de-indexing the reference in search engines. The remedy of a “take-down” order restores the qualities of practical and partial obscurity of prejudicial information that was a characteristic of the pre-Digital Paradigm. The paper also discusses the issue of juror contempt in light of proposed changes to the law in the Administration of Justice (Reform of Contempt) Bill.

Is it Illegal for a Convicted Murderer to Question a Juror Post Trial?

No, so long as the contact is non-threatening.   Judge N. William Delker of New Hampshire determined that convicted felon, Richard Moore, did nothing wrong by writing to the jury forewoman to find out why he was found guilty.  Not surprisingly, the juror was bothered by the letter and turned it over to the state attorney general.  Apparently, Moore received the juror's address from his attorney.  While it does not appear that Moore committed any crime, a no-contact order has nonetheless been issued preventing him from any direct future contact with the jurors who found him guilty.  

Unionleader.com: Juror startled, alarmed to receive letter from man convicted of Danville woman's 2016 murder

Latest Edition of the Jur-E Bulletin

Taint on the Jury?

The Minnesota Court of Appeals issued an opinion in State v. Crenshaw on August 20, 2018. Mr. Crenshaw was convicted of several sexual offenses with a minor and received a life sentence. During jury deliberations, as two jurors were leaving for the night, the jurors individually made contact with a man and a woman. The man and the woman asked Juror J.S. if deliberations were complete. She did not respond and continued walking. However, as Juror M.K. passed, the man made eye contact with her and made a “throat-slitting gesture with his hand.” Jurors J.S. and M.K. reported their experiences to the rest of the jury the next morning. The other jurors encouraged them to report it to the court which they did.

The trial judge held a hearing and conducted a colloquy with jurors J.S. and M.K. No other jurors were interviewed. Juror M.K. made some non-committal statements such as, “I’ll try to just put it out of my mind so we can come to an agreement.” She also said, “I will continue. I can’t totally separate that it did happen,” The judge allowed her to continue as a juror and the defendant was ultimately convicted.

Minnesota caselaw requires a trial judge to conduct a hearing and interview all of the jurors when the jury has been exposed to an outside influence. In this case, the contact that M.K. had with the man and the woman was clearly an outside influence. The Minnesota Court of Appeals determined that interviewing two jurors was inadequate to make a determination that there was no outside influence on the jury at large. They remanded the case with instructions to hold a hearing, interview all of the jurors and only leave the convictions to stand if the hearing establishes that all of the jurors were unaffected by the man’s throat slitting gesture.

Take Down Orders

Judge David John Harvey recently published an article online titled Diluting Prejudice. The article addresses motions/orders to temporarily remove information from the internet while a defendant is standing trial. Although the article is based on Australian law and the outcome may be very different in the U.S. due to the First Amendment, this article is applicable in at least one situation. It is applicable when a defendant makes a motion for the court to remove from its own publicly accessible online docketing system information about a defendant’s prior criminal charges and case outcomes. The abstract to the article states:

This paper is about the steps that may be taken to dilute but not totally eliminate the prejudicial effect of on-line material that relates to a defendant about to stand trial. It is posited upon the fact that jurors, despite strong judicial directions, will go on-line to seek out information relevant to the case that they are trying. The solution lies in the use of what could be described as “take-down” orders whereby material is removed from websites during the course of the trial to eliminate or dilute any prejudice that may otherwise arise, along with de-indexing the reference in search engines. The remedy of a “take-down” order restores the qualities of practical and partial obscurity of prejudicial information that was a characteristic of the pre-Digital Paradigm. The paper also discusses the issue of juror contempt in light of proposed changes to the law in the Administration of Justice (Reform of Contempt) Bill.

Maine Judge Holds Listening Session with Jurors

The Bangor News reported on August 21, 2018 that Somerset County, Maine Superior Court Justice Robert Mullen held a “listening session” with prospective jurors who failed to respond to jury summonses. The purpose of the meeting was not punitive but rather to get a better understanding of the underlying causes of the problem. The judge heard a variety of explanations including issues surrounding residents not receiving mail timely. The article doesn’t say this but from a public relations perspective Judge Mullen’s approach gets the word out to the public that the court takes responding to summonses very seriously.

Well Designed Jury Summonses

The NCSC Center for Jury Studies sometimes has received requests for examples of well-designed jury summonses and qualification questionnaires.  If your court has recently redesigned its jury documents to communicate information more clearly and understandably to prospective jurors, please upload an electronic copy here or send samples to Greg Hurley at ghurley@ncsc.org.  Many thanks for your assistance.

Cops and Convicts: An Exploratory Field Study of Jurymandering

James M. Binnall, Assistant Professor of Law, Criminology, and Criminal Justice at California State University, Long Beach is publishing an article in a forthcoming edition of the Ohio State Journal of Criminal Law titled Cops and Convicts: An Exploratory Field Study of Jurymandering. The author did an excellent job at surveying the states to see what the juror exclusion policies are for felons and law enforcement officers. He also does a good job at describing the issues surrounding the current practices and suggesting that corrective measures that should be taken. The abstract to the article states:

Forty-nine states, the federal government, and the District of Colombia statutorily limit convicted felons’ opportunities to serve as jurors. One of the primary justifications for felon juror exclusion alleges that convicted felons harbor an inherent bias in favor of criminal defendants and are adversarial towards prosecutorial agents. The justification presumes that such a bias would undermine the impartiality of the jury. This exploratory field study builds on prior research examining the pre-trial biases of convicted felons and is the first to assess 1) jurisdictional approaches to law enforcement juror eligibility criteria and 2) the pre-trial biases of law enforcement personnel. To do so, this study surveys 211 active law enforcement personnel using the Revised Juror Bias Scale and compares that data to prior studies of convicted felons’ pre-trial biases. Results indicate that law enforcement personnel, as a group, harbor a pro-prosecution pre-trial bias as strong as the pro-defense pre-trial bias exhibited by convicted felons. Still, while the vast majority of jurisdictions exclude convicted felons from jury service, only a handful bar law enforcement personnel from the venire. These results ostensibly call into question the empirical validity of the inherent bias rationale and the true purpose for felon juror exclusion statutes

More on the Manafort Jurors

WashingtonPost.com: Lone holdout on Manafort jury blocked conviction on all counts, juror says

Paul Manafort Jurors

CNN has an article discussing the background of some of the jurors who sat in judgment of Paul Manafort.  As some might have heard, Mr. Manafort, one time campaign manager for Donald Trump, was convicted yesterday of 8 criminal counts related to tax and bank fraud.  The jury was unable to reach a verdict on the 10 remaining counts.  

CNN: Who was on Paul Manafort's jury of his peers?

Boomerangs, Cliffs, and Inverted U-Curves: Natural Delimitation of Damage Awards

John Campbell

Abstract

Frequently, civil plaintiff trial attorneys want to test how different demands made in closing argument impact case outcomes. They worry that in admitted liability cases (where only damages are at issue) that asking for too much money could isolate jurors. And they worry that in cases in which liability is also at issue, asking for too much money could cause jurors to flip their votes on liability. Simultaneously, critics of juries worry about almost the precise opposite issue, arguing that jurors are excessively malleable and are therefore prone to anchoring and runaway juries. These concerns implicate anchoring, where most of the literature predicts that jurors will respond positively to ever increasing demands. And they implicate fusion effects which teach that liability and damages interact. 

This paper examines both phenomena, relying on a unique set of data drawn from studies conducted on real cases for real attorneys. This paper provides fresh insight into the interplay of damage demands and liability rates by relying on case expected value – the average award of jurors who find liability reduced by the liability rate. The data suggests that when expected case value is compared to the amount demanded, total case returns are defined an inverted u-curve. This curve is produced both because of decreased anchor saliency and by negative fusion effects on liability. 

At a practical level for attorneys, this suggests that there is a proverbial “sweet spot” for demands where the maximum anchoring effect is obtained without unacceptable levels of negative fusion effects. And at a policy level, the data suggests that jurors impose outer bounds on demands – suggesting the fear of runaway juriesis overblown. Indeed, there appears to be a natural circumscription of damage awards in jury trials.

Arguments for Non-Unanimous Jury Verdicts

While most want unanimous juries and there is a push to change the law in the two remaining states (Louisiana and Oregon) that permit non-unanimous juries, the desire for reform is not universal.  For example, the Louisiana Attorney General, Jeff Landry is against changing the status quo.  He thinks the current system of 10-2 verdicts works fine.  He makes several arguments for split verdicts none of which are very persuasive or even logical.  For example, he claims that moving to unanimous verdicts will make jury selection more difficult because attorneys will become more fearful of that one recalcitrant juror getting on the jury.  If the attorney, most likely the prosecutor, is worried about that one juror she can exercise a peremptory or try and challenge the juror for cause. 

To learn more about why 10-2 verdicts are fine go here.

Prosecuting in the Shadow of the Jury

Anna Offit

Abstract

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors. Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States. Part II describes the ethnographic research method deployed in this case study, noting its unique capacity to document off the record decision-making practices. Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors' evaluations of their cases, evidence, investigations, and plea agreement discussions. Part IV considers several explanations for hypothetical jurors' perceived relevance to prosecutors' work beyond their instrumental and strategic value. Part V concludes that the U.S. Attorney’s Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form. This finding contributes a novel rationale for fortifying the U.S. jury system and a novel perspective to the study of prosecutorial ethics.