Juries

Latest Edition of the Jur-E Bulletin

Alaska Case Demonstrates Legal Perils of Livestreaming Jury Trials

The Sun Journal’s description of State of Alaska v. Downs is a case study in how intentional actions of a trial judge combined with unintentional technical glitches can lead to a First Amendment side battle.  The recent criminal trial of Mr. Downs was conducted in person but, because of COVID public health precautions, there were no observers inside the courtroom.  Instead, the trial was livestreamed.  On the first day of trial, the judge prohibited broadcasting the voir dire to “protect juror privacy.”  Once the jury was selected, the three-week trial suffered numerous black outs of online coverage.  In addition, the judge announced he would take discretionary breaks while evidence was being presented “in order to preserve the privacy and dignity of the alleged victim” and that he would not announce when the livestream restarts. Instead, the public was told “you will need to refresh the page to get back into the courtroom.”  Several news outlets raised vigorous concerns in written filings to the judge during the trial—all of which resulted in at least regular audio-only coverage of the trial.  The Sun Journal piece did not report the outcome of the trial.  If there was a conviction, we may learn more from a possible appellate record.

Maryland Considers Repeal of Ex-Con Exclusions from Jury Service

After several years of unsuccessful legislative efforts, the Washington Post reports Maryland is “poised” to repeal the state’s law requiring exclusion of felons and misdemeanants from jury duty.  Both the Maryland House and Senate have passed slightly different versions of the bill.  There remains the task of reconciling those differences in conference.  If a law is eventually adopted, Maryland will join a small group of states trying to make juries more diverse and, according to the Prison Policy Initiative, make a dent in the number of citizens (twenty million) who are barred from jury service due to prior convictions.

Seating an Impartial Jury in First January 6 Criminal Trial

The National Law Journal ($) reports the first trial of a defendant who participated in the January 6 incursion of the Capitol will begin on February 28 in a Washington, D.C. federal courtroom.  The courthouse is located several hundred yards from the Capitol dome in a jurisdiction whose electorate cast a mere 10% of its vote for Donald Trump.  Pretrial questionnaires are being used to discern juror bias.  Stephen Saltzburg, a George Washington University Law School professor and co-director of the school's litigation and dispute resolution program, is quoted saying, "The challenge is going to be for whoever is presiding, judges are going to have to be sure that the voir dire process is adequate to remove the potential jurors who really have their minds made up about what happened on January 6 and who are inclined to hold every single person who was there equally responsible.”

 

Preparations Underway for Jury Selection in Michigan Governor Attempted Kidnapping Case

In another high-profile case involving political violence allegations, a federal judge in Grand Rapids, Michigan prepares for jury selection on March 8—a case involving several men charged with plotting to kidnap Governor Gretchen Whitmer.  The trial is expected to last five weeks and may include more than 400 exhibits and nearly 50 witnesses. MLive.com quotes U.S. District Court Judge Robert J. Jonker to say: “I don’t want the trial to become a referendum on whether the trucking convoy in Ottawa is good or bad, or whether what happened on Jan. 6 is an insurrection or legitimate political discourse. I want the focus to be on what happened in this case.” 

Appellate Court Upholds Jury-Summoning Limitations on Older Persons During Pandemic

In Budd v. Kaiser Gypsum Company, Inc., Kaiser challenged a plaintiffs’ verdict for several reasons, including the Washington State trial court’s summoning policy to exclude citizens 60 years of age and older during the pandemic.  The defense asserted the special summoning policy violated statutory randomness requirements and constructively excluded a cognizable class.  An appellate panel rejected the claims.  With respect to randomness, the panel reasoned the court substantially complied with the relevant statute.  Regarding constructive exclusion of a class, the appeals court found the exclusion was not “systemic.”  After reading the lengthy decision, one might wonder, “Is this a conclusion begging for a reason?”

The Interested Expert Problem and the Epistemology of Juries

Alexander Guerrero

Abstract

The existence of experts raises a host of interesting questions in social, legal, and political epistemology. This article introduces and discusses interested experts – people who are experts on some topic, but who also have a distinct set of values and preferences regarding that topic, so that they are not well-described as “disinterested” parties. Interested experts raise several distinct problems in social, legal, and political epistemology. Some general questions arise: can we rationally or justifiably form beliefs relying on interested expert testimony? Do they constitute knowledge? Under what circumstances? This article focuses on a specific question in legal epistemology: should interested experts be allowed to serve on juries and, if so, should it be permissible for lawyers to strike them from the pool of potential jurors? Concentrating on this question will provide insight into the more general questions concerning the epistemology of testimony with respect to interested experts, while also providing concrete recommendations for jury reform to improve the epistemic performance of juries.

Maryland Looking to Lift Ban on Felons Serving on Juries

At present, Maryland, like most states, prohibits felons from sitting on juries.  In fact, Maryland goes further than most states and bans anyone who has served more than one year in jail.  This prohibition may soon come to an end because the Maryland Senate has given preliminary approval to Senate Bill 30 which overturns the state's ban save for convictions involving witness or jury intimidation.  Similar legislation has been introduced in the Maryland House except it does not include the carve out provisions for witness or jury intimidation.  The two bills need to be reconciled and then sent to the governor for his signature in order to become law.

To read more about this story go here.

 

 

Latest Edition of the Jur-E Bulletin

North Carolina Supreme Court Finds a Batson Violation – For the First Time Since 1986

In a 4 to 3 ruling last week, the state high court in State v. Clegg determined the trial judge improperly denied a Batson claim.  The lengthy and scholarly opinions by majority justices determined the trial judge, among other things, did not properly compare the questioning of struck jurors with retained jurors.  Associate Justice Anita Earls, in a concurring opinion, acknowledged the supreme court has ineffectively enforced the Batson doctrine.  She admitted the Clegg case is the first time the court has ever found a Batson violation, citing Daniel R. Pollitt & Brittany P. Warren, Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957 (2016).

Diverse Jury Selected in Ahmaud Arbery Hate Crimes Trial

The Washington Post describes the demographics of the jury empaneled this week in the prosecution of Gregory McMichael, Travis McMichael, and William “Roddie” Bryan.  (It took over a week to complete jury selection from 1,000 citizens summoned from 43 counties.)  On Monday U.S. District Judge Lisa Godbey Wood seated the final 12-member jury composed of eight White people, three Black people, and one Hispanic person — a more diverse panel than in the state murder trial. Wood said she expects the trial to last between 7 and 12 days.

When Can a Judge Overturn a Jury Verdict?

In United States v. Crittenden, a divided panel of the US 5th Circuit supported the trial court’s decision to overturn a jury verdict because the evidence failed to show that Crittenden had knowledge of the nature of the controlled substance he possessed as was required to convict him of possessing methamphetamine with the intent to distribute.  In other words, it would have been “a miscarriage of justice to let the verdict stand.”  The case is especially interesting due to the dueling views in the majority and dissenting opinions.  The majority concluded the trial judge “did not simply disregard the jury’s verdict in favor of one it felt was more reasonable.” But, rather, it “cautiously reweighed the evidence, determined that a mistake had been committed, and permissibly granted a new trial to ‘prevent a miscarriage of justice.’”  In a vigorous dissent, Judge Gregg Costa pointed to “beaucoup evidence” showing Crittenden knew he possessed a controlled substance.  He found the trial judge was most concerned about the 292-to-365-month mandatory sentence resulting from a conviction.  His dissent closes with, “[T]he district court—now with our court’s blessing—concluded that the cross-section of the El Paso community that found Crittenden guilty committed a miscarriage of justice. (I guess I too would have been party to that miscarriage of justice as I think the jury got it right.) This judicial override of the jury’s verdict disrespects their service.”

When Does an Anti-Deadlock Instruction Become Unlawfully Coercive?

In Callaham v. United States, the D.C. Court of Appeals was faced with review of a robbery conviction in which the deliberating jury sent multiple notes to the trial judge indicating they were deadlocked followed by notes in one instance asking these questions: “What is [p]roof of taking without right? How do we know [he] didn’t have a right to property? What is the basis of knowing whether or not the defend[ant] had right to property or not?”  After the court instructed them to continue deliberating, the jury sent another note saying, “After re-watching and reviewing the evidence, and after further intense discussions, we are still at an impasse. We carefully considered and re-considered each of the elements of the allegations [and] . . . [w]e are unable to reach a unanimous verdict.”  The court denied a defense motion for a mistrial and gave the standard anti-deadlock Winters instruction.  Thereafter, the jury announced a guilty verdict.  But during final jury polling, one juror stated disagreement with the verdict.  Prompting the trial judge gave a different anti-deadlock instruction resulting in a guilty verdict.  On appeal, the high court took the position it must assess the risk of juror coercion “from the jurors’ perspective,” inquiring into both “the inherent coercive potential of the entire situation before the trial court and the ameliorative or exacerbating impact of the judge’s actions in response to that situation.” The panel stated, “Taking into account this ‘entire situation,’ we conclude that the coercive potential was high at the time the trial court opted to deliver another anti-deadlock instruction."

Australian Courts Facing Juror Misconduct and Intimidation Phenomena

There’s a truism, “We all have a lot more in common than differences.”  The Western Australian news service WAtoday describes a smorgasbord of instances where Australian juries are facing security fears or demonstrating internal misbehaviors not dissimilar from jury trials in the USA.

Palin Jurors Show the Challenges of Adjudicating in the Digital Age

As some may know, former Governor Palin was unsuccessful in her recent libel suit against the NY Times.  However, prior to rendering their decision on Tuesday, several jurors learned beforehand that Judge Jed S. Rakoff, the presiding judge, was going to dismiss the case if the jury found in Palin's favor.  Jurors discovered this information from push notifications from news websites on their smartphones.  I would not be surprised to see  juror misconduct as at least one issue on appeal.

To read more about this case go here.

Vermont Considering Moving Away from Unanimous Civil Jury Verdicts

Presently, Vermont is considering legislation to allow supermajority verdicts in civil cases.  S.178 , which is currently before the Vermont Senate Judiciary Committee, would only require agreement from two-thirds of jurors unless the parties in the case agree otherwise.  If this legislation is enacted, Vermont would join 26 other states that allow non-unanimous verdicts in civil cases.  

To read more about this story go here.

Jury Rates May Go From $30 to $100 in Virginia

Legislation that would raise jury pay from $30 to $100 a day has cleared the Virginia Senate Judiciary Committee on a 13-0 vote.  Next stop is the Senate Finance and Appropriations Committee.   The bill was originally introduced by Lynwood Lewis, D-Accomack.  If the legislation is enacted into law, many believe it will cost the state approximately $5 million.  Determining the actual cost was somewhat challenging because in 2020 Virginia changed how it sentences criminal defendants.  Defendants are no longer required to have jurors sentence them after conviction but are instead given the choice of judge or jury.  At present, Kentucky is the only state that requires criminal defendants to be sentenced by jurors.  Many believe that this change may lead more Virginia defendants to opt for jury trials because jurors had traditionally imposed harsher sentences on defendants.

 To read more about this story go here. 

Scott Peterson Juror Offered Immunity

Attorneys for Scott Peterson are attempting to get their client's death sentence overturned by claiming that Richelle Nice, one of the jurors who sat on Peterson's jury, was biased.  As some may recall, Scott Peterson was sentenced to death for killing his wife and unborn child.  In an upcoming hearing scheduled for this week, defense attorneys will argue that Nice failed to reveal to the court during voir dire that she had been abused by a boyfriend and that she had a restraining order against an ex-boyfriend's girlfriend.  The court has granted Nice immunity in order to get her to testify.  Since the trial, Nice has written a book with other jurors and corresponded with Peterson via mail.

For more on this story go here.

 

Latest Edition of the Jury-E Bulletin

Defense Attorney’s Interjection of Racial Stereotypes During Jury Selection Leads to Conviction Reversal

In Dean v. Narvaiza, Mr. Dean was convicted of attempted murder and lesser charges.  During jury selection, his lawyer asked the prospective jurors if they had any preconceived ideas about African Americans having “certain attributes.” None of the prospective jurors answered that they did. The lawyer responded, “You don't?” and followed with a discussion involving several offensive racial stereotypes. He insisted that the prospective  jurors must have heard that all African Americans “like watermelon” or “have an attribute of violence, that they are sneaky.” Again, no one on the venire responded.  Despite receiving no affirmative response, counsel asked if any of the prospective jurors could not evaluate Dean “as just another guy, not a black guy?”  In Dean’s habeas corpus petition to the Nevada Supreme Court, the court concluded that the district court erred in denying Dean's post-conviction petition, “as counsel's performance fell below an objective standard of reasonableness and resulted in prejudice. We therefore reverse the district court's order denying Dean's petition and remand for further proceedings.”

Policeman Charged with Murder Loses Request to Bar Media from the Courtroom

The trial of Kentucky police officer Brett Hankison is currently underway in Louisville.  He is charged in the homicide of Breonna Taylor in a botched police raid.  Wave News, a local news media outlet, reports Hankison’s attorney asked the trial judge to bar the media from jury selection because of biased media coverage of the case.  Judge Ann Bailey Smith denied the motion saying the defendant had not “carried his burden of overcoming the presumption of openness of criminal trials.”

In Praise of Civil Grand Juries

Santa Clara's The Mercury News ($) features an op-ed piece by Michael Krey, who is co-president of the Santa Clara County chapter of the California Grand Jurors’ Association.  He describes the 150-year history and intended role of civil grand juries (CGJs) in California Superior Courts.  He believes the virtues of civil grand juries are demonstrated by a recent grand jury’s finding Sheriff Laurie Smith is taking bribes in return for concealed firearms permits.  Krey asserts the Smith accusations stem from the “unique power of the CGJ… to investigate elected or appointed officials—compelling testimony using subpoena powers—and decide if they’ve uncovered enough evidence to make an accusation of ‘willful or corrupt misconduct.’  This can lead to a trial that in turn may result in forcing the official from office.”

Court Allows Unvaccinated to Serve on Juries

In contrast to prior Jur-E Bulletin stories about how some judges require jurors to be vaccinated, The Middletown Press in Dover, Delaware, reports on a contrasting policy.  Trial judge Joshua Wolson ruled people who are not “up to date” on their COVID-19 vaccines cannot be excluded from the jury pool for a criminal trial starting this week.   He believes the Constitution guarantees a criminal defendant the right to a trial by an impartial jury drawn from diverse segments of the population, and that the pandemic cannot be used as an excuse to weaken that right.  Specifically, he stated, “While it is easy to invoke the trope of ‘health’ to justify intrusions on liberty, such as limits on jury trials or the eligible members of a jury pool, the Supreme Court has indicated that the Constitution provides a bulwark against those intrusions.”

Online Media Site Promotes Ways to “Legally” Get Out of Jury Service

Court jury managers take note.  Legal Scoops, an online newspaper, is broadcasting ways to persuade a court to excuse citizens from jury duty.  For example. “Speak up if you know something about the case or someone involved because this is a legal excuse not to serve as a juror, including relatives, employers, or any other personal relationship, even with a witness. The same applies to a bias about the case; tell the court, which will excuse you.”  And there is this call to would-be thespians: “Being vocal, hostile, or a know-it-all often makes lawyers uncomfortable because they are unsure if the evidence will persuade them. You can try this tactic to get yourself excused.”

The Constitutional Right to Bench Trial

Guha Krishnamurthi

University of Oklahoma College of Law

Abstract

Sometimes juries are prejudiced against the defendant. Juries may be predisposed to find a defendant guilty because of the nature of the charges. They may be predisposed to find a defendant guilty because of the reputation and demeanor of the defendant. They may be biased against a defendant for bigoted reasons, either consciously or not. Juries may also lack the ability to understand and apply the law in some cases. And indeed such kinds of juror prejudice may pervade the jury pool.

The resulting pervasive juror prejudice imposes constitutional harms on the defendant. Among other things, pervasive juror prejudice contravenes a defendant’s presumption of innocence and a defendant’s right to fair trial procedures. The way our current law handles such pervasive juror prejudice is inadequate: Courts are unlikely to delay trial when appropriate, instead relying on voir dire and jury selection. But this is no solution, because voir dire and jury selection are unable to cure pervasive juror prejudice.

In this Article, I proffer the first comprehensive, multimodal argument that defendants have a constitutional right to bench trial. First, I explain that as a theoretical matter, providing the defendant with the unilateral option of a bench trial with the requirement of a reasoned opinion is the only effective way to combat pervasive juror prejudice. Second, I show that the empirical and historical evidence confirm that the problem of pervasive prejudice is substantial: it arises frequently, including in the most high-profile cases; prosecutors do refuse consent to bench trial in cases where prejudice may arise; and the purported solutions of voir dire and jury selection are ineffectual. Finally, I show that, as a doctrinal matter, the interpretation of the Sixth Amendment—including with respect to the right to waive counsel, the right to a unanimous jury trial verdict, and the Court’s response to racism in jury selection and jury deliberations—shows that the defendant has the unilateral right to bench trial.