Juries

Jury Polling and the 6th Circuit

In U.S. v. Ryan P. Collins,  the defendant was found guilty after trial of receiving and distributing child pornography, 18 U.S.C. § 2252(a)(2), and possessing child pornography. Prior to sentencing the defendant, the trial judge polled the jurors and 11 of the 12 recommended that the defendant receive less than 30 months incarceration, which was in stark contrast to the federal sentencing guidelines that had the defendant looking at 262 to 327 months of incarceration. The judge ultimately sentenced the defendant to 5 years of incarceration and the government appealed.   

As part of its argument to the 6th Circuit, the government claimed that the "judge's reliance on the jury poll impermissibly conflates the distinct roles of the judge and jury." The appellate court quickly batted this argument down by stating that the poll occurred after the jury determined the defendant's guilt thus the poll did not intrude on the jury's traditional fact finding role.

Next, the government argued that the jury poll was an "impermissible factor" for the judge to consider in determining a sentence. Here, the appellate court pointed out that "Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence."  The appellate court went on to state that the "the jury's sentencing recommendation" did not prevent the trial judge from considering the other Section 3553(a) factors that judges must consider when crafting an appropriate sentence.  

Ultimately, the 6th Circuit Court of Appeals held that it was not "substantively unreasonable" for a trial judge to poll jurors and consider their responses before sentencing the defendant.   

To read more about this case go here.

Jurors Recanting

Since I live near Cincinnati, I feel compelled to post about the three jurors who are now recanting their prior guilty verdict in the trial of former Judge Tracie Hunter.  As a general rule, courts rarely overturn a verdict due to a juror's second thoughts.  However, in this case, the defense may have an argument because of how the trial judge polled the jury.  As I have discussed previously, courts have routinely overturned a verdict because of improper juror polling by the judge.  While the process is fairly straightforward, problems do arise.

In this case, after five weeks of trial and three days of deliberation, the jury told the judge that they had a verdict on one of the nine felony charges but were deadlocked on the other eight.  The trial judge then called the jurors into the courtroom and asked them if they had reached a verdict on the one charge and they said "yes."  However, the judge never read aloud the verdict on the one charge nor did he individually poll the jurors which is what normally occurs. The guilty verdict form, which had been signed by all the jurors, was then sealed and the jurors went back to deliberating on the remaining eight charges. Ultimately, the jurors never arrived at a unanimous verdict on the remaining charges and the judge declared a mistrial.

Since declaring the mistrial, three jurors, all of whom are Black, now claim in sworn statements that they were pressured by other jurors to vote guilty. The defendant in this case is also Black and many in the community have questioned her prosecution from the beginning believing that it was politically motivated.  

USA TODAY: Black jurors who convicted Cincy judge change minds

What Happens When a Polled Juror Disagrees with the Verdict (U.S. v. McDonald)

Ever wonder what happens when a polled juror disagrees with the verdict in open court?  Well, according to the 2nd Circuit Court of Appeals in U.S. v. McDonald, the trial judge just has to tell the jurors to continue to deliberate. In McDonald, the jury announced its guilty verdict in open court.  However, during polling, juror #11 failed to confirm that she was in favor of the guilty verdict. This led to a sidebar among the judge and the parties. During this sidebar, the judge told the parties that he planned to tell the jurors to go back to the jury room and continue to deliberate in light of all of the instructions that I have given you. Neither the defense nor prosecution disagreed with these instructions. 

The jurors returned one hour later and once again convicted the defendant. When the jurors were polled the second time they were all in agreement with the verdict. The defendant subsequently appealed. Specifically, the defendant wanted the trial judge to instruct [each] juror not [to] abandon any conscientiously held beliefs.

According to the appellate court, it should be clear that the district courtʹs instruction was not an Allen charge at all...The instruction contained no language ʺobligat[ing] jurors to convince one another that one view was superior,ʺ which ordinarily would require the inclusion of further cautionary language...And we find nothing in the context and circumstances of this case that would require the cautionary language despite the absence of any Allen‐type instruction to reconsider oneʹs views...In the circumstances presented by this case, we think that the district courtʹs approach was a prudent one. The courtʹs instruction correctly carried no implication that any juror opposing conviction was obligated to reconsider her views.

To read previous posts on polling jurors go here.

Judge's Comments Prior to Polling the Jury Not Enough to Oveturn the Verdict (U.S. v. Cherry)

In U.S. v. Cherry the defendant was convicted by a jury of possession with intent to distribute, possession of a firearm in furtherance of drug trafficking, and possession of a firearm after a felony conviction. 

When the jury had finished deliberating, the jury foreperson handed the verdict form, which she had signed, to the clerk, who passed it to the district judge. The judge returned the guilty verdict to the clerk, who proceeded to read it aloud. The clerk then asked, “Members of the jury, is this your verdict, so say you all?” J.A. 514. All the members of the jury indicated an affirmative response. At this point, the judge thanked the jury and added the following remarks:

Sometimes all of the information is not given to you. This defendant had previously been convicted of distributing a controlled substance, had previously been convicted of resisting arrest, and had previously been convicted of carrying a firearm in furtherance of a drug trafficking crime.

I only tell you that to tell you that these things are not admissible because of the way the rules are written, that a person has to be judged on this particular crime, but I just thought I would tell you about that because it tells you a little bit about Mr. Cherry's background and it will give you some idea of that.

I thank you for your paying close attention, just so you would know what, unfortunately, I know because I can see all of this information, and you haven't seen it and it would not be admissible. But the rules of evidence under these circumstances didn't permit it.

J.A. 514–15. Immediately following these comments, it became clear that the defense counsel wished to poll the jury. The clerk asked each juror, in succession, “Is this your verdict?” Id. at 515–16. And each juror replied that it was.

The defendant appealed his conviction arguing among other things that the judge's comments prior to polling the jury constituted plain error.  The defendant had to argue the plain error standard because his attorney at trial had failed to object to the judge's comments. 

Under the plain error standard, a defendant must demonstrate (1) that an error occurred, (2) that the error was plain, and (3) that it affected his substantial rights.

In applying this test, the 4th Circuit Court of Appeals determined that "yes" it was error for the judge to comment on the defendant's record prior to polling the jury; however, the trial judge's comments did not substantially impact the defendant's rights.  The appellate court pointed out that

the evidence against him [Cherry] was overwhelming and the circumstances surrounding the erroneous remarks are strong indicia that the jury had reached a unanimous guilty verdict.

The appellate court also noted that

Mitigating any potential damage done by the court's ill-advised comments was the fact that the jury was already aware that Cherry was a convicted felon. Although the jurors had not been told what crimes Cherry had been convicted of, the parties stipulated that he had been “convicted in a court in Virginia of a qualifying felony crime punishable by imprisonment for a term exceeding one year prior to the occurrence of the acts charged as violations in the indictment.”

CA SCT: Failure to Poll Jury not Enough to Overturn the Verdict

This week the California Supreme Court, in People v. Anzalone, determined that a trial judge's failure to poll the jurors after a guilty verdict was harmless rather than structural error.  As such, the state hight court overruled the appellate court and affirmed the defendant's conviction. 

The appellate court had initially overturned the defendant's conviction because they had found the jury's verdict to be "incomplete, defective, and invalid."  The CA SCT saw it differently. According to the state high court, "to call what transpired here structural error would be to expand that notion beyond any example articulated by the United States Supreme Court, and elevate form over substance."

For other posts that discuss polling jurors go here. 

Polling the Jury

While the concept seems pretty straight forward (having the judge in open court ask individual jurors whether they agree with the verdict), I am constantly surprised at the number of issues that can arise when jurors are polled.

In the latest example, a defense attorney requested that the judge poll the jurors despite receiving a "not guilty" verdict (I am still trying to figure out why this defense attorney made such a request).  Well, the first juror, when polled by the judge, stated that she did not agree with the verdict.  This led the judge to send the jury back to the jury room for further deliberations.  When they returned some time later they found the defendant "guilty" of a lesser charge. 

Whidbey News Times: Jury finds woman 'not guilty,' then 'guilty'

The issue of polling or hearkening the jury was also recently on the mind of Howard County (Maryland) Circuit Judge Dennis M. Sweeney.  As regular readers of this blog know, Judge Sweeney writes periodic columns on jury related issues.  This month's column discusses the case of State v. Santiago.  In Santiago, the trial judge after announcing the jury's guilty verdict asked the defense counsel and the prosecutor if there was "anything further for the jury?"  Both attorneys replied in the negative and the jury was dismissed.  However, the clerk never polled the jurors or requested a harkening of the verdict prior to the jurors being dismissed.  The Court of Special Appeals found this misstep detrimental enough to the defendant to overturn the jury's guilty verdict.  The case is now on appeal to the state's highest court (Court of Appeals).

Maryland Daily Record:  Judge on the Jury: Hearkening, then and now

NY Says Jury Polling Must be Allowed

NY's Top Court Says Individual Jury Poll Required

New York's top court ruled Tuesday (Duffy v. Vogel et al.) that litigants in civil suits have a right to ask jurors if they each agree with their collective verdict and ordered a new trial in a medical malpractice case.

The Court of Appeals ruled 6-1 that the trial judge erred when she determined individual polling was unnecessary after all six jurors signed 16 written questions on a verdict sheet in Eleanor Duffy's suit against Drs. James Vogel and Allan Jacobs. The jury exonerated the physicians of malpractice.

"We do not think it sensible to expect that a juror would in open court spontaneously pipe up his or her disagreement with an announced verdict," Chief Judge Jonathan Lippman wrote. That's unlikely in a solemn and intimidating courtroom "unless it is made clear that it is permissible to do so and an opportunity is provided."

The majority acknowledged that jury polling has never been justified based on its probability of uncovering differences between verdicts and what the jurors intended.

In a dissent, Judge Robert Smith said ordering a new trial "results in a gross injustice in this case, and will no doubt do so in some future cases." Jurors almost never change their minds, and the possibility in this case, where the verdict was detailed, clear and individually signed, "is vanishingly small," he wrote.

The jury was unanimous, while the civil verdict required only 5-1 approval to be valid, Smith wrote. While the right to a jury poll is absolute, its omission is usually "a harmless error," seldom more than an honest mistake by a judge, which he said was the case here.

The Importance of Polling

California Supreme Court to Weigh Oversight in Juror Polling (NLJ)

When San Diego County Superior Court Judge John Einhorn polled jurors for their votes in a wrongful-death case in 2006, he forgot to get one man's answer on two of 13 questions.

That might not seem like a big deal, but it was, leading to a California Supreme Court oral argument Tuesday to decide whether the judge's error -- which wasn't noticed by counsel on either side at the time -- requires a new trial.

Plaintiffs lawyers, who oppose a new trial, including appellate counsel Paul Fogel, argue in court papers that a defense victory in the high court could lead to unwarranted reversals in future cases.

"Less-than-scrupulous litigants or their counsel (a label we do not attach to defense counsel or defendants here) who find themselves on the short end of a verdict," Fogel, a partner in Reed Smith's San Francisco office, wrote, "may silently count votes during polling and, if polling is incomplete, may remain silent, guaranteeing a new trial or a reversal on appeal."

But his opponent, Jeff Harmeyer, a partner in San Diego's McAtee Harmeyer, thinks that's an overstatement.

"From our perspective," he said in a voicemail message, "we don't see what occurred in this situation to the jury as being something that would occur that often."