Juries

Latest Edition of the Jur-E Bulletin

Sister of Prosecutor Not Removed for Cause

The Michigan Court of Appeals, Western District rendered an opinion in State v. Brandolese on December 26, 2018.  Mr. Brandolese was convicted of “second-degree domestic assault and one count of armed criminal action” following a jury trial.  During voir dire, it was revealed that one of the prospective jurors was the sister of an assistant prosecutor that had handled some of the pretrial hearings in the case, although he did not ultimately try the case.  The defense moved for a removal for cause.  The court rejected the motion because the defense had failed to ask questions of the juror regarding whether they could be fair and impartial.  The defense further failed to raise the issue in post-trial pleadings. 

On appeal, the Michigan Court of Appeals, Western District treated the issue as un-preserved error.  They looked to the appropriate statute which states, “[N]o person who is kin . . . to the . . . prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.”  Here, although the assistant prosecutor that was related to the juror did not try the case, he was involved “in the same cause” and therefore the statute was violated.  The appeals court determined that this was a manifest injustice that impacted the defendant’s right to a fair and impartial jury.  Therefore, the appeals court revered and remanded the case. 

Jurors Recount the Traumatic Impact of Jury Service

The Washington Post published a story on December 26, 2018 about the trial of Darren Wint. Mr. Wint was convicted of 20 counts of murder, kidnapping and burglary which the newspaper called “one of the most horrific cases to grip the nation’s capital.” Several of the jurors that participated in the 6 week trial were interviewed for the story. It does a good job of portraying the emotional turmoil that the jurors experienced which included a sense pf bonding with the deceased victims. The article is an interesting article worth reading.

A Factual Error in the Use of a Peremptory Challenge

The Supreme Court of Kansas issued an opinion in State v. Gonzalez Sandovalon December 21, 2018. Mr. Gonzalez-Sandoval was tried and convicted of aggravated indecent liberties with a child following a jury trial. During voir dire, the defendant objected to the State using a peremptory strike to remove an individual with a Spanish surname from the pool of potential jurors. The prosecution responded by stating the prospective juror had not been candid when asked during the jury selection process about having been a witness or having been interviewed by law enforcement. The trial judge accepted this explanation. The prosecution later confessed to the court that it made a mistake and the juror had in fact been honest with the court. The defendant made the appropriate arguments for a new trial following the conviction, which were denied.

On appeal, a majority of the Court of Appeals determined the circumstances showed the peremptory strike was not race-neutral. The majority thus concluded the district court should have granted Gonzalez-Sandoval a new trial. The prosecution appealed this ruling to the Supreme Court of Kansas.

The Supreme Court of Kansas framed the sole issue in this case as: If a party exercises a peremptory strike for a reason later found to be untrue, should a new trial be granted? They determined that the prosecution’s honest but mistaken belief about its race-neutral reasons for striking the juror does not presumptively show purposeful discrimination. They therefore reversed the Court of Appeals and affirmed the conviction. To reach their conclusion they relied on the trial court’s finding that the prosecution had honestly believed that the juror had not been candid with the court when it offered this explanation as a race neutral reason for exercising a peremptory challenge against the juror in question. They further relied on the trial court’s ruling that the prosecution's original explanation was not pretextual.

 

A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries

Leonardo Magnat

Abstract

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an open trial, the broad discretion afforded to judges, and the impacts of anonymity on juror decisionmaking. In fact, one mock jury experiment found that anonymous jurors returned approximately 15% more guilty verdicts than their non-anonymous counterparts. The anonymous jury is unquestionably a potent tool that affords a court great flexibility to meet the exigencies of a trial head on. But its extraordinary characteristics counsel care in its empanelment. By adopting the Seventh Circuit’s approach to anonymous juries and requiring reasoned verdicts when they are used, anonymous juries may yet become an “inspired, trusted, and effective” instrument of justice.

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(The Jur-E Bulletin is being sent a day early this week due to the Holidays.  Happy Holidays!)

Juror Rehabilitation Case

The Supreme Court of the State of Colorado issued an opinion in Marko v. People on December 17, 2018. Mr. Marko was convicted of murder and sexual assault following a jury trial. During voir dire, the trial judge informed prospective jurors that the defense intended to present a “not guilty by reason of insanity” defense. Juror C initially expressed concern that the defense is too frequently utilized. He further stated that he would have a “tough time” with the defense and that the evidence needed to prove insanity would have to “be so overwhelming from a doctor’s point of view, psychologist, whoever you would have up there for me to go with, okay, he was definitely insane.” Through a colloquy from the trial judge, Juror C eventually indicated that he could return a verdict of not guilty by reason of insanity if the evidence warranted it. The defendant made the appropriate motion to remove Juror C for cause. The Supreme Court of the State of Colorado held that “Because the trial court sufficiently rehabilitated the prospective juror through individual questioning during voir dire, the court concludes that the trial court did not abuse its discretion in denying the defendant’s challenge for cause.”

Quick Survey

Please take two minutes to answer the following questions via email and send the responses to Greg Hurley at ghurley@ncsc.org.

1. Does your state or court routinely collect information about the race and/or ethnicity of prospective jurors? (Yes or No)

2. What jurisdiction are you from?

3. If yes, is that information provided to the judge and/or attorneys for use during voir dire? (Yes or No)

4. If yes, please email a copy of the form on which you collect the information.

Jury Poll Experiment

The United States Court of Appeals for the First Circuit issued an opinion in U.S. v. Obiora on December 11, 2018. Mr. Obiora was convicted of conspiracy to possess with intent to distribute heroin, and was sentenced to 120 months' imprisonment, followed by 36 months of supervised release. On appeal, he raised a number of issues which were addressed by the appellate court. However, one is particularly interesting as it raises questions about experimentation and/or implementing innovations into trial practice. In Obiora’s case, apparently the trial judge allowed jurors to suggest possible sentences for the case by polling the jury after the trial. The First Circuit stated:

The government agrees with Obiora that the district court's use of the juror poll was error. We agree and so hold. In so concluding, we do not dispute that innovation has a role in improving the courts' practices. For that reason, we have national and local bodies, like the U.S. Sentencing Commission and the Administrative Office of the U.S. Courts, tasked with considering new ideas and sometimes conducting pilot projects. With greater hands-on experience dealing with jurors and sentencing, trial judges certainly are better positioned than we are to conceive of innovations that may improve the sentencing process. But the ad hoc implementation of any significant innovation, especially off-the-record and ex parte, can leave circuit courts ill-equipped to assess the legality, fairness, and efficiency of the experimental practice. Here, for example, the docket contains no record of the polling. We do not know how the jurors were asked and answered, or even whether the average sentence recommendation was correctly calculated. The parties cannot shed light on the polling procedure, as they were excluded, albeit apparently with their silent acquiescence.

The United States Court of Appeals for the First Circuit affirmed the conviction. However, the appeals court’s position on ad hoc experimentation/innovation implementation is very clear.

The Impact of Movements on Juries

Emily R. Nerness published her master’s thesis online titled The Impact of Black Lives Matter Movement Publicity on Juror Decision Making. She looked at a specific special interest group, but the finding may be applicable to others. The abstract to the article states:

Others have investigated separately whether general pretrial publicity (PTP) or racial salience have an impact on juror decision making, but no one has explored a potential connection between the two. With information about the Black lives matter (BLM) movement recurring in the media, the question arises of whether news about the BLM movement can increase racial salience, thereby influencing juror decision making. The present research addressed whether 1) exposing participants to pro-BLM or negative-BLM news articles would influence verdicts and guilt ratings when compared to a control group, 2) whether this PTP effect would be different for Black versus White defendants, and 3) whether racial attitudes or attitudes toward police would mediate the relationship. To assess these questions, I conducted a two-part study in which participants read three newspaper articles that included either a pro-BLM article, a negative-BLM article, or a control article in addition to two distractor articles. Three days after completion, participants listened to an audio recording of a mock trial with a description of either a Black or a White defendant and viewed a mugshot that corresponded to the description. Participants then rendered their verdict, provided a likelihood of guilt rating, and responded to the Perceptions of Police Scale and Color Blind Racial Attitude Scale. No effects for race or PTP were found; however, a significant effect was found for defendant picture. This finding highlights the complexity of potential factors in juror decision making by indicating that defendant appearance may have played a greater role than either race or PTP.

Narco-Tourists

The New York Times ran a story on December 18, 2018 about the odd collection of people that have appeared at the Chapo Guzman trial to sit in the gallery. This isn’t technically a jury management story but it is worth reading as it is informative and entertaining.

Exclusion of Felons Questioned

Sharion Scott of the Washington University School of Law published an article in the most recent edition of the Washington University Journal of Law & Policy titled, Justice in the Jury: The Benefits of Allowing Felons to Serve on Juries in Criminal Proceedings. The abstract to the article states:

This note by Sharion Scott highlights an often-ignored remnant of the old common law concept of civil death wherein a felony conviction carried with it the revocation of civil rights long after a sentence was served. Specifically, Scott points to the fact that thirty-one states exclude felons from serving on juries. Scott argues that where a disproportionate number of incarcerated people are black, the practice of excluding felons from jury duty perpetuates the under-representation of minorities on juries and exacerbates jury bias. Scott argues that jury service should be open to felony offenders who have completed their sentences and desire to civically engage with society and that criminal rehabilitation, civic participation, and jury integrity are best served by the inclusion of felons in the jury pool.

U.S. Patent Litigation Juries and a Solution for Improving Jury Comprehension

Jennifer Weiss

Abstract

The right to a trial by jury is a basic and fundamental feature of American federal jurisprudence, protected by the Seventh Amendment. Over the past several decades, patent litigation has gone through several transformations in an effort to resolve disputes fairly and efficiently.

The Apple-Samsung trial increased the publicity of high profile patent litigation cases and provoked skepticism from legal scholars on the validity of the current patent litigation system. Judge Richard Posner mistrusted judges’ and jurors’ abilities to decide complex patent cases effectively. Judge Posner, and others, argue that it’s time to end jury trials in patent cases.

However, improvements can be made to the current patent litigation system without eliminating patent jury trials. This article focuses on the current U.S. patent litigation system, patent litigation systems in other countries, current revisions to improve U.S. patent litigation trials, and proposes a mixed jury solution to ensure jurors fully understand the complex and technical facts of a patent case.

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People v. Keith Eric Wood

The State of Michigan Court of Appeals issued an opinion in People v. Keith Eric Wood on December 11, 2018.  Mr. Wood was charged and convicted of jury tampering as a result of handing out Fully Informed Jury Association pamphlets titled Your Jury rights: True or False.  The pamphlets contain information on jury nullification.  Factually, the evidence indicated that Mr. Wood happened to watch a pretrial hearing involving a defendant charged with illegal draining of a wetland because he was generally interested in the case.  He didn’t know the defendant.  That night he found the pamphlets online and decided to hand them to people outside the courthouse the following morning while prospective jurors appeared for the above noted environmental case.  There was divergent testimony as to whether the pamphlets were being generally handed out to members of the public or whether he was specifically targeting jurors.  Two jurors that heard the environmental case testified that the defendant approached them, asked if they were at the courthouse for jury service and handed them the pamphlets. 

Prior to trial, the defendant argued that his actions were protected by the First Amendment.  He likewise argued this point on appeal to the circuit court.  Both lower courts rejected his arguments.  The State of Michigan Court of Appeals considered this issue again.  It determined that prospective jurors are “jurors” within the meaning of Michigan’s jury tampering statute.  The appeals court stated:

Applying strict scrutiny, we hold that application of the statute to defendant’s conduct was a narrowly tailored means of furthering the state’s compelling interest in preserving the impartiality and integrity of jurors. Defendant concedes that the government has a compelling interest in preventing jury tampering, but states he “does not concede . . . that the State has a compelling interest to criminalize [his] distribution of a juror rights pamphlet on a public sidewalk.” Yet this argument is based on the premise, rejected outright by the jury, that defendant only intended to educate the general public with his pamphlet. The jury, in fact, determined the opposite, as it found that defendant distributed the pamphlets in an attempt to willfully influence the decision of jurors in a particular case. We cannot overemphasize the importance of the jury’s finding that defendant intended to influence two jurors summoned for Yoder’s case [the environmental case]. It is that specific level of intent that takes defendant’s case out of the general pamphletting activities protected by the First Amendment.

The State of Michigan Court of Appeals affirmed the conviction.  However, the holding in this case is very important because it specifically differentiates situations in which nullification pamphlets may be passed out to a broad range of people appearing at the courthouse and not just prospective jurors appearing for a specific case. 

Victorian Juries Commissioner to Examine Juror Support

(Paul Dore, Juries Commissioner of Victoria, Australia)

“Members of the community take on the weighty work of jurors. They’re not lawyers. Consequently, jurors may have little appreciation of the legal system and court procedures and its impact on them,” said Paul Dore in his acceptance speech at the Winston Churchill Memorial Trust (Australia) Awards Dinner, held in November 2018.

Paul Dore is the Juries Commissioner of Victoria, Australia, and one of only 21 Victorians to receive a 2018 Churchill Fellowship. Fellowships are awarded to experts across a range of fields who are passionate about challenging the status quo to create or make a positive impact on Australia’s society. This year, 112 Australians were awarded Fellowships worth over $3.1 million.

Paul’s project aims to develop a systemic approach to juror support programs in Australia.

“My interest lies in the juror experience, formed by a combination of the disruption to daily routine, the serious nature of jury trials, the formality and foreign surroundings of court proceedings, and the often horrific evidence presented in criminal trials,” says Paul.

Paul will travel to the UK, the USA and Canada to access jury systems currently reviewing, or who have recently reviewed, their engagement with citizens through juror support programs and other channels.

Through immersion, observation and interviews with key players: judiciary and court administrators, key legislators and policy advisers, academics, and jurors, he will explore the impact of jury service on citizens taking up their civic duty and the role jury administrators play in supporting them to do so.

“Some international jurisdictions have recently looked at both the fundamental need for counselling and mental health support programs for jurors and the practicalities of implementing such programs. Their thinking is contemporary, fresh and even raw.”

Paul intends the findings of the project will generate debate and policy development in all Australian jurisdictions, which may in turn lead to uniform standards and expectations across Australia.

“While there are some support systems in place for jurors, there is scope for improvement. The project will help to develop a more nuanced approach to supporting jurors and, given the centrality of the jury to our system, is very worthwhile,” said Chief Justice Ferguson of the Supreme Court of Victoria. “The project is very exciting … It will draw on experience elsewhere in the world (not available in Australia) to better support jurors (particularly from a mental health perspective) to perform their important work.”

The Winston Churchill Memorial Trust (Australia) was established in 1965 to honor the memory of Sir Winston Churchill, and fulfill his wish for people from all walks of life to travel the world to gain new knowledge and share ideas and insights.

If you would like further information, email Paul Dore, Juries Commissioner, Juries Victoria at paul.dore@juries.vic.gov.au

DC Jury Procedure Challenged

The District of Columbia Court of Appeals rendered an opinion in Coley v. U.S. on November 15, 2018. Mr. Coley was tried and convicted of a number of violent firearms offenses following a jury trial. When the jury was polled following the verdict being published in open court, Juror 668 stated “I can’t agree” with the verdict. The trial judge immediately sent the jury back out to further deliberate. They were instructed again to not reveal the numerical division of the jury.

After approximately 25 minutes, the jury sent a note out for the judge. Following an internal rule that required another judge to review any jury notes that may identify the numerical division of a jury, the clerk took the note to another judge. That judge reviewed the note and indicated that the trial judge should not see if because it did identify or suggest the numerical division of the jury. The trial judge did not permit the parties to see the note either. Rather, the trial judge called the jury back into the courtroom, explained why he had not reviewed the note and instructed the jury to continue deliberating. After the defendant was convicted on all charges, the parties and the trial judge saw the note. It was from Juror 668 and stated, “I don’t feel he did it.” The defense counsel made all of the appropriate motions to preserve this issue for appeal.

The Court of Appeals considered two tightly related issues:

First, by withholding the juror’s note from the parties and affording them no opportunity to be heard by the judge who read and evaluated the note and advised how to respond, the procedure denied appellant his right to be present at a critical stage of his trial and impaired his ability to argue effectively for a proper response.

Second, by keeping both judges ignorant of material information, the procedure prevented either judge from appreciating the substantial risk of juror coercion and taking the steps necessary to alleviate that risk.

The District of Columbia Court of Appeals noted that the purpose of shielding the trial judge from knowing the numerical division of the jury is to try to prevent any appearance that the trial judge suggesting that a lone holdout conform to the will of the majority. In this case, because Juror 668 was the third juror to be polled (9 jurors had not been polled), Juror 668 could not have gotten the impression that the trial judge “wanted her to change her vote.” However, when she sent out a second note that the trial judge did not review, told the jury he didn’t review it and failed to instruct the jury that they should refrain from giving up sincere views of the case just to reach unanimous verdicts, the trial judge may have unintentionally coerced guilty votes from Juror 668. The Court of Appeals determined that there was a substantial risk of juror coercion and reversed/remanded the case. They found that the parties should have had the opportunity to see the note and make any motions they deemed appropriate before the second judge, which caused the second judge to make a decision without all the facts. However, the Court of Appeals seemed to suggest that the procedure employed here of having a second judge evaluate juror notes that state or suggest numerical divisions to be conceptually sound.  This case was an anomaly due to the second note.   

Judicial Branch Launches Simplified and More Convenient Juror Notification

(The following press release was issued on December 3, 2018)

The Iowa Judicial Branch has launched a new juror notification process. Beginning today, prospective jurors in Iowa will no longer receive a paper juror questionnaire in the mail with a summons to report for jury duty. Instead, prospective jurors will receive a post card with information on how to complete the questionnaire online.

Each postcard will be specific to the county of residence and include the website address for the online questionnaire, the address of the courthouse with a small map, a juror number, the service start date, the term of service, and the juror badge.

The updated online questionnaire, eJuror, will include a section for jurors to enter a cell phone number or email address for notification by text message or email three days prior to the jury service start date and again 24 hours prior to the start date. A prospective juror may also reschedule his or her service date online, one time.

“This will simplify the process and make it more convenient for citizens summoned for jury service," State Court Administrator Todd Nuccio said. "We anticipate a better response rate because people can easily complete the juror questionnaire on their phones or at their home computer 24 hours a day, 365 days a year. We plan to look at the utilization rate after the launch to see if the new process has improved the response."

Along with the new juror notification process, the Iowa Judicial Branch added a new jury service page to its website at https://www.iowacourts.gov/iowa-courts/jury-service/ . The page includes a link to the online juror questionnaire along with an overview of jury service, answers to frequently asked questions, directions on how to complete the online questionnaire, what to expect during a trial, a link to a short video on the history of jury service, and information on how to identify and avoid jury scams.

A portion of the frequently asked questions section explains how citizens are selected for jury service and includes a link to the master list of names in the jury pool. The judicial branch compiles lists of licensed drivers, state identification card holders, and registered voters residing in each county to create the Master Jury List. The Master Jury List is online at https://data.iowa.gov/Government/Master-Jury-List/cajy-5hfr .

The judicial branch website also has individual pages with juror information for each county. The county specific pages include contact information, what to wear to court, where to park, and jury check-in information. A link to the pages is at https://www.iowacourts.gov/court-directory/ .

The new process results from recommendations in the March 2018 Iowa Supreme Court Committee on Jury Selection report (https://www.iowacourts.gov/collections/41/files/499/embedDocument/ ). The Committee on Jury Selection recommended that “The Office of the State Court Administrator should (1) develop a new process for notifying jurors of their duty to serve, and (2) create a jury portal on the website, which should include an e-juror questionnaire and information about jury duty.”

Understand Your Jurors’ Online Reality

Dr. Ken Broda-Bahn has written an excellent review of a recent article I wrote (Social Media, the Internet, and Trial by Jury) about the current state of research on jurors and the Internet.  In his review, Dr. Broda-Bahn notes the challenges of determining the pervasiveness of online juror misconduct stating that estimates "need to be taken with a grain of salt because the same social desirability bias that limits the reliability of answers in voir dire also limits ability to collect data on this question of whether jurors are violating the rules."  To read his review in entirety go here.

Are Jurors

While it can be dangerous to try and extrapolate general trends from one isolated case, the article below is nonetheless a good read.  It discusses how jurors in a recent murder case in New York city had serious doubts about the prosecution's case, especially in areas that have historically been straightforward or so-called slam dunks like confessions and DNA.  I am not sure if this is a growing trend or just an isolated incident but I think prosecutors in the future may have to do a better job of connecting the dots for jurors instead of just putting forth their evidence and expecting jurors to accept it.   Today's jurors may be a little more sophisticated than those in the past. 

NYTimes.com: The Murder Case Seemed Solid. Here’s Why Jurors Would Not Convict.