Juries

'Juror' Blog Posts During and After Trial Lead to Evidentiary Hearing (U.S. v. Mark Zimny)

'Juror' Blog Posts During and After Trial Lead to Evidentiary Hearing (U.S. v. Mark Zimny)

In U.S. v. Mark Zimny, a jury found the defendant, Mark J. Zimny (Zimny), guilty of five counts of wire fraud, five counts of engaging in unlawful monetary transactions, two counts of filing false tax returns, and one count of bank fraud. Zimny appealled, raising several arguments. The First Court of Appeals addressed only one of those arguments: that the district court's inquiry into Zimny's claims of juror misconduct (blogging) was inadequate. The court agreed with Zimny and remanded for an evidentiary hearing, leaving for another day the other issues that Zimny raised.

Here is the alleged juror post that most directly led to the evidentiary hearing

Boy this is getting comical. I've been following it on and off, and was also on the jury. Mama June, and those who were there know what I'm talking about,[5] was spouting about the "shots in the dark" blog since day one. Its [sic] why she conveniently got 'sick' and didn't finish her service. Several other jurors told her to stfu[6] and got annoyed. '[I]diot' doesent [sic] describe the half of it.

According to the First Circuit Court of Appeals,

...the additional juror comment raised a colorable claim of juror misconduct: that, contrary to Juror No. 8's testimony, she discussed the blog post with other jurors.

 

Juror Intimidation by Law Enforcement (Tarango v. E.K. McDaniel)

Juror Intimidation by Law Enforcement (Tarango v. E.K. McDaniel)

It appears that juror intimidation can come in many shapes and sizes to include surveillance by the police. In Tarango v. E.K. McDaniel, the petitioner, Manuel Tarango, filed a habeas corpus petition claiming that he was denied a right to a fair and impartial jury when a police vehicle "followed a known hold-out juror, for approximately seven miles, on the second day of deliberation in a highly publicized trial involving multiple police victims."  While the federal district court denied petitioner's habeas petition, the Ninth Circuit Court of Appeals vacated that decision.  In doing so, the three-judge appellate panel held that "the Nevada Supreme Court's decision upholding the petitioner's convictions was contrary to Mattox v. United States, 146 U.S. 140 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a 'communication' and did not investigate the prejudicial effect of the police tail."  In denying the petitioner's prior request for relief, the Nevada Supreme Court had questioned whether a juror being followed by a police car constituted a "communication" and if it did whether that communication was "about a matter pending before the  jury." 

The Ninth Circuit Court of Appeals subsequently remanded the case for an evidentiary hearing and further fact finding.

Conviction Overturned But Not Because of Juror's Facebook Posts

In U.S. v Ganias, defendant-appellant Stavros M. Ganias appealed from a judgment convicting him of tax evasion. Ganias challenged his conviction on two grounds.  First, he argued that his Fourth Amendment rights were violated when the Government copied three of his computer hard drives pursuant to a search warrant and then retained files beyond the scope of the warrant for more than two-and-a-half years.  Next, he argued that his right to a fair trial was violated when, during the trial, a juror posted comments about the case on his Facebook page and “friended” another juror. The 2nd Circuit Court of Appeals rejected the defendant's second argument but found that the first argument had merit and thus vacated the defendant's conviction.  In rejecting the second argument the court wrote the following:

A juror who “friends” his fellow jurors on Facebook, or who posts comments about the trial on Facebook, may, in certain circumstances, threaten a defendant's Sixth Amendment right to an impartial jury. Those circumstances, however, are not present here. The district court inquired into the matter and credited Juror X's testimony that he deliberated impartially and in good faith. The district judge's credibility determination was not clearly erroneous, and thus she did not abuse her discretion in denying the motion for a new trial.

The court of appeals then went on to recommend that trial judges provide more specific instructions to jurors to prevent similar behavior in the future.

I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube...

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, or any internet service, or any text or instant messaging service; or any internet chat room, blog, or website, such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

 

 

 

 

When Defendants Waive Right to Jury Trial, Get it in Writing: (U.S. v. Shorty)

A recent three judge panel decision by the 9th Circuit illustrates the importance of putting any waiver of rights by the criminal defendant in writing.  In U.S. v. Shorty, the defendant had his conviction for firearm-related charges overturned  because his trial judge was not thorough enough in accepting the defendant's jury trial waiver.  The panel found that the defendant's jury waiver was not made knowingly and intelligently. 

According to the panel, the defendant and the judge engaged in the following colloquy with respect to waiving the right to a jury.

Defendant: Yes.

Court: Alright. 12 people would sit, listen to the evidence, and then apply the facts to the law, all of the testimony and all of the evidence that's submitted, and then make a determination as to whether or not you're guilty of these offenses. Do you understand that?

Defendant: Yes, ma‘am.

Court: Alright. And so you're telling me that you would rather not have the jury trial, you're willing to waive your right to that trial; is that correct?

Defendant: Yes.

Court: And you are—according to your lawyer, you would like to have a trial to the Court, which is to me. Do you understand that?

Defendant: Yes.

Court: And that's how you would like to proceed?

Defendant: Yes.

Court: Alright.

The panel found this colloquy deficient because the trial judge did not get the defendant's waiver in writing nor did the judge tell the defendant, who earlier informed the court that he had a low IQ, that 

he could help choose the jury or that the jury verdict must be unanimous.Moreover, the court did not question Shorty in a way that would ensure that he understood the two pieces of information he was given.

Interestingly, the panel did not buy into the government's argument that the defendant's waiver was knowingly and intelligently because of his prior experience with the criminal justice system.  According to the three judge panel,

we are aware of no case in which we have held that prior experience with the criminal justice system negates a court's responsibility to conduct an adequate colloquy before accepting a jury-trial waiver.Second, there is no evidence that Shorty had been properly instructed, on these prior occasions, of what his right to a jury trial entails. Finally, even if Shorty was properly instructed on his right to a jury trial, nothing suggests that he retained that information ten, fifteen, or even twenty years later when he waived the right again in 2010

Bottom line:  When a criminal defendant wants to waive his right to a jury, get it in writing.

Challenging Jury Selection Practices in the 9th Circuit (U.S. v. Hernandez)

In U.S. v. Hernandez a 3-judge panel of the 9th Circuit affirmed an illegal reentry conviction in which the defendant argued that in compiling its 2009 master jury wheel, the Southern District of California violated the Jury Selection and Service Act of 1968 and the Constitution.

Applying the absolute disparity rule, the panel held that because a juror source list consisting only of registered voters did not substantially underrepresent African–Americans or Hispanics in the community, the Southern District's failure to supplement that list did not violate the Sixth Amendment. The panel also held that because the defendant neither alleged nor showed discriminatory intent, there was no Fifth Amendment equal-protection violation.

The panel wrote that the Southern District Clerk's Office should not automatically disqualify individuals who express doubt about their English skills, and should not put off preparing statistical jury-representativeness forms required by the Act, but that these technical violations did not frustrate the Act's goals and do not warrant merits relief in this case.

The panel held that the Southern District's dismissal of prospective jurors based solely on a “no” answer to a question whether jurors “read, write, speak and understand the English language” was not a substantial violation of the Act because it did not interfere with the Act's key goals of randomness and objectivity. The panel also held that the defendant did not demonstrate that the Southern District substantially departed from the requirements of the Act by failing to return questionnaires to prospective jurors who failed to answer questions on race and/or ethnicity.

The panel cautioned the Southern District to take note of the statutory violations identified and amend its practices in the future.

10th Circuit Says You Can't Sandbag Juror Information

In U.S. v. Turietta, the defendant after a 7-hour trial was convicted of  assaulting a federal officer.  During the trial, his jurors were unsworn.  Apparently, the only one who realized this fact was Turietta's defense counsel.  After the jury returned a guilty verdict, defense counsel moved to set aside the verdict based on the fact that the jury was unsworn.  The trial court denied defense counsel's motion.   

On appeal to the 10th Circuit, defense counsel argued that the defendant's6th Amendment right was violated because the jury was unsworn.  The appellate court was unpersuaded and found that the defendant through his counsel forfeited his 6th Amendment right.  Specifically, the appellate court wrote:

By lying behind the log, Knoblauch [attorney for the defendant] failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture.

This case also has great discussion on the historical and legal implications of the juror's oath.

To read about another recent case where defense counsel kept juror information from the court go here.

 

Federal Cockfighting Conviction Overturned Because of Juror's Wikipedia Research

In U.S. v. Lawson, the 4th Circuit Court of Appeals recently overturned the cockfighting convictions of several defendants. The reversal was due to juror misconduct in the form of online research.  Specifically, a juror (177), after a day of deliberations, went home and researched the term "sponsor" on Wikipedia.  "Sponsor" was an element of the animal fighting statute that the defendants were accused of violating.  Juror 177 also brought in the results of his research to the jury room and shared the material with other jurors. 

Upon learning of Juror 177's actions, the trial court held a hearing to investigate whether the guilty verdicts had been tainted.  The trial court ultimately determined that there was no reasonable possibility that the external influence caused actual prejudice.  Thus, the trial court denied the defense's motion for a new trial based on a violation of the 6th Amendment right to a fair trial.  In overturning the trial court's decision, the Court of Appeals determined that because the government has a "heavy obligation" to rebut the presumption of prejudice by showing that "there is no reasonable probability that the verdict was affected by the" external influence, [], the government's showing in this case, as a matter of law, does not satisfy that obligation. The Court of Appeals then went on to vacate the appellants' convictions under the animal fighting statute, and...award them a new trial with respect to those charges.