Juries

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The Risks of Open-Court Voir Dire Demonstrated in Second Theranos Fraud Trial

Law 360 reports on last week’s jury selection in the trial of former Theranos executive Ramesh “Sunny” Balwarni in a California federal court. Prospective jurors were questioned about the possible effects on their judgment from the recent jury conviction of Balwani’s cohort, Theranos CEO Elizabeth Holmes. After four hours of open court questioning of prospective jurors, the defense team moved to strike the entire venire panel and start all over with a fresh one. They argued that the jury pool had been tainted by prospective jurors who tried to recall aloud various news stories, documentaries, podcasts, and YouTube videos that mentioned Holmes’s trial and Theranos’s rapid rise and swift fall from grace in 2016. (One prospective juror said he may need to leave the trial to fight in Ukraine.). Defense counsel Jeffrey Coopersmith listed several statements made by jurors about the once high-flying startup and its top brass during their questioning—including comments by a prospective juror who repeatedly called the company a fraud. Coopersmith said those open court statements were so prejudicial that they tainted the pool of jurors listening and that the judge must dismiss the panel for Balwani to get a fair trial. U.S. District Court Edward Davila denied the motion.

Judge Closes Courtroom to Observers Midtrial—Murder Conviction Reversed

In People of Michigan v. Davis, the fiancée of the defendant was a gallery observer. On the second day of trial, she had a benign interaction with a juror. Once this was reported to the trial judge, he prohibited all courtroom observers from the rest of the trial except the victim’s mother. Although the trial court did not take any further action to effectuate this closure, the Michigan Supreme Court held that the unjustified closure violated defendant's public-trial right and constituted plain error requiring reversal.

Colorado Peremptory Strike Reform Delayed by District Attorneys

Pending in the current session of the legislature is Senate Bill 128. It was intended to improve how peremptory strikes are policed under the Batsondoctrine. Specifically, the bill provides a list of presumptively invalid reasons for peremptory challenges, including:

• having prior contact with law enforcement officers;
• expressing distrust of law enforcement officers or a belief that law enforcement officers engage in racial profiling;
• having a close relationship with an individual who has been stopped, arrested, or convicted of a crime;
• residing in certain neighborhoods;
• having a child outside of marriage;
• receiving state benefits; or
• speaking English as a second language.

The bill would also require appellate courts to hear peremptory challenge cases de novo and review a trial court's factual findings for substantial evidence. The Journal reports the sponsor of SB 128 has withdrawn the bill from consideration indefinitely because of failure to reach a compromise with the Colorado District Attorneys’ Council.

 

Michigan Governor Kidnapping Case Postponed Due to Unspecified COVID-19 Infection

The trial of four men accused of plotting to kidnap Governor Gretchen Whitmer has been underway in Grand Rapids since last week. However, the Detroit News reports Chief U.S. District Court Judge Robert Jonker has postponed the trial because an “essential trial participant” has tested positive for the coronavirus. The newspaper said, “Few prospective jurors wore the protective gear during jury selection last week and almost nobody wore masks during the first three days of trial.”

Questioning About Prior Sexual Abuse—A Jury Selection No-No?

An op-ed piece by former N.Y. state and federal prosecutor Tali Farhadian Weinstein appeared yesterday in the New York Times ($). He criticizes a question directed to prospective jurors in the Ghislaine Maxwell trial. As noted in a previous issue of the Jur-E Bulletin, Maxwell’s lawyers are seeking a reversal of her conviction because one juror did not answer this question in the affirmative, “Have you or a friend or a family member ever been the victim of sexual harassment, sexual abuse, or sexual assault?” Days after verdict was delivered, the court discovered the juror told his fellow deliberating jurors about his own victimization. Consequently, the judge questioned the subject juror about his failure answer that question affirmatively. The author asserts the standard voir dire question unnecessarily causes humiliation and disrespect of a juror. Weinstein suggests a better line of questioning. Readers might try to come up with additional better questions also.

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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?”

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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.”

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Judge Requires a Juror to Serve After Unsuccessful Efforts to Rehabilitate

The civil jury trial inGuerrero v. Cardenaspresents an extraordinary example of a judge not only trying to rehabilitate jurors who do not want to be jurors in a case but also requiring the jurors to serve. After suffering a defense verdict, plaintiff claimed the judge improperly required two jurors to serve on the jury despite one saying he would “never serve on a jury” and the other juror expressing reluctance to serve because of what happened to a family member in a jury trial. A Texas intermediate appellate court opinion denying the plaintiff’s request for a new trial provides large portions of thevoir diretranscript. The judge’s dialogue with these venire members discloses his extraordinary, unsuccessful efforts to convince each juror to serve on the jury. When each declined, the judge ordered them to serve.

Who Are the Jurors in the Federal Case Against Ex-Minneapolis Police Officers?

In the ongoing federal trial of three former police officers who were on the scene in George Floyd’s murder, it is noteworthy that jury selection in this case is vastly different in manner and duration compared tovoir direin the state court prosecution of Derek Chauvin. For example, in the Chauvin case jury selection took eleven days and drew prospective jurors only from Hennepin County. In the federal case against Chauvin’s police partners, jury selection took one day and drew panel members from a variety of counties—some many miles away from Minneapolis.YouTube provides us with a broadcast by TV channel KARE11describing some demographics of the federal jury hearing the case.

Attorneys Share Thoughts About the Long-Term Effects of COVID-19 on Trials

Senior partners at law firms specializing in plaintiff cases were interviewed ina December issue of theNational Law Journal.($) Robins Kaplan Los Angeles-based partner Roman M. Silberfeld assessed the effects of pandemic on trial lawyers saying, “There are plenty of lawyers, mostly on the younger side, who don’t feel the need to come to the office five days a week.” However, he is a strong supporter of a post-pandemic return to the office, given that staff is fully vaccinated. He believes younger lawyers will suffer from the lack of interaction with more senior attorneys. “They don’t even understand what they are losing.” He still recalls weekly lunches with his mentor as a golden opportunity for a young lawyer to learn “more than I ever did from everything formal he did for me.”

Federal Judge Requires Only Vaccinated Jurors in Upcoming Jury Trial

Reuters reportson a federal judge’s strong views about the importance of jurors being vaccinated. In an order delaying a civil trial due to the surge in COVID-19 cases, U.S. District Judge Robert Scola in the Southern District of Florida called getting vaccinated against COVID-19 part of a broader social obligation “to consider the safety and well-being of our community” and said that those who have not been vaccinated “have given a distorted meaning to the COVID-19 vaccine, rather than recognize the vaccine for what it is—an effective and safe means of minimizing transmission and illness. It is the Court’s belief that the vast majority of the unvaccinated adults are uninformed and irrational, or—less charitably—selfish and unpatriotic.” The judge had proposed excluding unvaccinated people from the jury, but a lawyer for the defendant insurance company objected.

El Chapo Claims of Juror Misconduct Rejected by Appellate Court

InUnited States v. Guzman Loera,the U.S. Circuit Court of Appeals for the 2nd Circuit on Tuesday upheld the conviction of Joaquin "El Chapo" Guzman, who is serving life in prison in Colorado. Reutersquotes the three-judge panel, to say there was no "clear, strong, substantial and incontrovertible evidence" from aVice Newsarticle to prove juror misconduct. "None of the allegations in the Vice News article shows that any juror was not impartial, harbored bias against Guzman, or was otherwise unfit to serve.” (By way of background,VICE Newsreported on an exclusive interview with a former juror who claimed that at least five fellow jurors violated the judge’s orders by following the case in the media during the trial. The juror also shared details of the deliberations, the extraordinary security precautions that were in place, and the jury’s views on Chapo, his lawyers, the prosecution, and several key witnesses.)

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Wanted: Info on Juror Orientation for Grand Jurors

NCSC’s Center for Jury Studies is gathering resources for courts to use for orientinggrand jurors.If readers have scripts or videos that you regularly use for grand juror orientation, please send them to Paula Hannaford-Agor at[email protected]. Thanks for your cooperation.

Jury-Related Resources

• Answering the Call for Jury Service (video)
• Center for Jury Studies
• High-Profile Cases in the 21st Century
• Juror Responsibilities Regarding the Internet and Social Media

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Equal Justice Initiative Publishes Recommendations to Make Juries More Representative The Equal Justice Initiative this week released “Race and the Jury – Illegal Discrimination in Jury Selection.”  This skillfully written report, featuring stunning and historic photographs, recounts the history of racial discrimination in jury selection, as well as makes concrete recommendations to policy makers and court actors for removing procedural barriers to achieve representative juries.  These include: Retroactively applying the Batson doctrine to cases decided before Batson Using more inclusive and accurate summoning lists Providing greater accountability for racially discriminatory jury selection by creating civil remedies against violators Authorizing appellate courts to review Batson violation claims de novo Legislator Proposes to Increase Juror Stipends to $100 per Day – Privately Funded California Assembly Member Phil Ting introduced Bill No. AB1452 to create a pilot project in 2022 to improve the pay for low-income jurors from $15 to $100.  The program is called “Be the Jury” and would be funded by philanthropic groups.  The San Francisco Chronicle reports (subscription required) the bill is aimed at improving racial and economic diversity in juries.  The Chronicle references data showing approximately 3,800 low-income San Francisco residents were excused from jury service due to financial hardship in 2018 and 2019. 40,000 Citizens Petition New York DA to Review Murder Conviction Based on Prosecutorial Misconduct Courts may not be the sole source for reversing a jury verdict.  The Queens Chronicle describes how New York citizens have mustered an effort to convince Queens District Attorney Melinda Katz to dig into the conduct of Brad Leventhal the trial prosecutor in State v. Chanel Lewis.  Coincidentally, Leventhal resigned after his misconduct led to a verdict reversal in another case. Polling Shows Judicial Support for Implicit Bias Instructions to Juries The National Judicial College asked judges whether they believe judicial education can help rid the courts of implicit bias.  Two-thirds of the 489 respondents said yes. After Court Staffer Tests Positive for COVID, All Court Employees Must Test for Infection 5 On Your Side in St. Louis reports all employees who interact with jurors at the Carnahan Courthouse must be vaccinated against COVID-19.  A recent order from Presiding Judge Michael Stelzer would apply to judges, clerks, members of the sheriff's department, IT staff, members of the Jury Supervisor's Office, and court reporters.  The new policy was prompted after a sheriff’s deputy overseeing a jury selection last week tested positive for COVID

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New York DA Vacates Convictions After Trial Prosecutor’s Notes Show Shameful Misconduct

The New York Jewish daily newspaper Hamodia reports that Bryce Benjet, the Queens County conviction-integrity chief, found a fellow prosecutor’s notes to be a cheat sheet of prejudices, favoring “established whites” as jurors and trying to exclude a swath of other people—Hispanics, Jews, some blacks based on their neighborhoods, Italian Americans if a defendant shared that background, and “mother type” or “grandmotherly” women. The files indicate the trial prosecutor indeed consulted the notes to nix prospective jurors in a pair of murder cases.

Florida Grand Jury Lambastes Duval County Law Enforcement

The Florida state supreme court authorized publication of a grand jury report studying school safety issues that lambasted the Duval County School Police for "outright fraud" and underreporting incident and crime numbers to make a better impression.  The report demonstrates that grand juries can be called upon in some states to investigate government misconduct.

“Bad Vibe,” “He Wasn’t All That Warm and Fussy (sic) to Me” Not Legitimate Reasons for Peremptory Strikes

That is what an Illinois appellate court determined in reviewing a Batson challenge involving a prosecutor who struck the only two black jurors in a felony drug case.  The appellate panel noted there was nothing in one prospective juror's "responses to suggest that he would not be a fair and impartial juror in defendant’s case."

Ohio Supreme Court Disqualifies Trial Judge for Not Keeping Courtroom Safe During Pandemic

In response to formal motions from trial counsel, Chief Justice Maureen O’Connor signed a court order disqualifying Judge Mark Fleegle from presiding over two criminal jury trials scheduled to begin this month.  The movant alleged Judge Fleegle failed to implement precautions to protect against the spread of the coronavirus in his courtroom. For example, the attorney alleged Judge Fleegle conducts all hearings in person rather than by remote technology and that he does not mandate facial coverings in violation of a statewide mask order and recommendations from the supreme court.  After hearing from all sides, the state high court disqualified Fleegle from upcoming criminal cases and stated this general rule, “If a judge cannot prove that he or she has taken steps to protect the safety of individuals in the courtroom, the judge may be disqualified, especially if the judge cannot also articulate the necessity of proceeding with jury trials during a dangerous stage of a pandemic.”

What Are the Limits of Hypothetical Questions in Capital Case Voir Dire?

During voir dire in Hojan v. State of Florida, defense counsel sought permission to pose the following hypothetical question to a prospective juror, “A guy kills somebody. Not self-defense. Not heat of passion. Not duress. Meant to do it. Premeditated. Killed an innocent victim. What are your feelings about the death penalty, only appropriate penalty for a guilty murderer of that innocent victim?”  The trial judge sustained the prosecutor’s objection to the hypothetical.  After defendant was convicted and sentenced to death, he appealed to the state supreme court, claiming several reversible errors occurred during voir dire. The supreme court found the trial court’s prohibition of the hypothetical question was harmless because defense counsel was able to ask other probing questions to discern prospective juror bias against the death penalty and no evidence of juror bias surfaced during the entire jury selection portion of the trial.

Resources for Managing Pandemic-Era Jury Trials

To help state courts effectively manage pandemic-era jury trials, the Conference of Chief Justices and the Conference of State Court Administrators have commissioned NCSC to publish a variety of practical resources.  The most recent products became available on the NCSC website this week.  First, there is an analysis of constitutional issues that can arise when a court system conducts virtual or hybrid jury trials.  Second, readers can find a variety of survey instruments to communicate with prospective and former jurors about jury duty during COVID-19.  The model instruments cover these topics: hardship requests, in-person juror exit questionnaires, remote jury selection exit questionnaires, a comprehensive public opinion survey, and a simplified public opinion survey.

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Philadelphia DA Says Livestreamed Trials Pose Dangers to Witnesses (and Jurors?)

The Philadelphia County Court of Common Pleas recently announced it was launching a YouTube channel where, at a judge's discretion, trials could be streamed for any member of the public to view.  And now, Law 360 reports that Philadelphia DA Larry Krasner told the Pennsylvania Supreme Court this week that the court's intent to livestream criminal trials this month after the pandemic largely shut down court operations in March would threaten the privacy of crime victims and raised the specter of rampant witness intimidation.  In addition to the prospect of witness intimidation, the DA’s office asserted that broadcasting trials over YouTube made it virtually impossible to sequester witnesses.  "A merely self-conscious witness might yield to temptation to compare her public performance with that of the other witnesses.  A more self-interested witness could intentionally conform her testimony based on that of other witnesses to achieve her desired outcome."

Sinaloa Cartel Kingpin “El Chapo” Raises Numerous Juror Misconduct Issues

Earlier this month, attorneys for Joaquin Guzman-Loera filed a 245-page appellate brief in which 60 pages were devoted to a variety of jury misconduct allegations.  For example, eight days after the guilty verdict was rendered, an anonymous juror spoke to Vice News saying numerous jurors during the trial followed news reports of the case and discussed the trial with others.  The defense criticized the trial judge for not examining jurors regarding misconduct allegations.

Discussing Implicit Bias with Prospective Jurors

For the past decade, millions have taken the Harvard Implicit Bias Test to better understand the dynamics of unconscious influences on decision making.  The Jur-E Bulletin has reported on a variety of efforts undertaken by social scientists and legal professionals to address the role of implicit bias in jury trials.  Trial consultant Dr. Ken Broda-Bahm recently advocated for a voir dire questioning method that indirectly uncovers juror implicit biases.  He recommends:

Instead of asking whether an experience would bias a juror, ask about the effect it would have. Instead of asking the “Yes/No” question of whether their given attitudes would bias their decisions, ask about the difficulty in setting it aside. 

How would it affect you? Can you describe the influence that might have on you? Do you think you would inevitably be thinking about that on at least some level as you hear about this case? Can you tell me more about how that experience could be on your mind as you evaluate the similar situation at the heart of this case? How easy or how difficult would it be for you to set that experience aside and keep it out of your mind? How likely or unlikely do you think it is that you could just bracket that out?

In other words, instead of talking about “bias,” talk about influence on thinking.

Want to Watch a Good Ole Live Jury Trial During the Pandemic? Simply Go to the Court TV Archive

Lest we forget how we used to do it, we can take a trip down memory lane and log into the Court TV archives.  For those of us who teach jury trial management, this video library is a great way to not only see some landmark trials (OJ Simpson, Casey Anthony, etc.) but also to behold some dos and don’ts for trial lawyers and judges.

6th Federal Circuit Orders New Trial Where Trial Judge Failed to Hold Evidentiary Hearing on Juror Misconduct During Final Deliberations

In a copyright and trademark infringement case that resulted in a split verdict, it was learned after trial that a juror during deliberations interjected off-the-record information that the plaintiff was willing to drop its lawsuit if defendant would make a few minor changes to his website but refused to do so. The juror reportedly told colleagues that if defendant wasn't so stubborn, none of us would be here. The juror also erroneously reported that the defendant’s annual income was $750K and, hence, he could suffer a compromise verdict.  The appellate court opined the juror's statement had a negative impact on the jury's attitude toward defendant and influenced the jury's deliberations.  Importantly, it was reversible error for the trial judge to not hold a hearing promptly after the juror misconduct allegations were discovered

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California Legislature Approves Bill Changing Evidentiary Standards in Batson Challenge Hearings

Governor Gavin Newsom will decide whether to approve or veto new legislation that, among other things, would change the criteria by which a judge decides whether a peremptory strike is unlawful.  Specifically, whenever a Batson hearing reaches the final step where a judge must weigh the final arguments of opposing parties, the bill provides that the court must determine if there is a substantial likelihood that an objectively reasonable person would “view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge.”  Before the legislature’s recent final action, California Supreme Court Associate Justice Goodwin Liu testified about the bill’s content and existing peremptory challenge procedures.

Jury Instruction During Online Trial: “No Dogs or Cats in the Room!”

As a weeks-long online jury trial moved to final deliberations this week, Alameda Superior Court Judge Jo-Lynne Lee instructed the jury that "generally, you must conduct yourself as if you're in court."  She said no juror can be excused "even momentarily to do any other work or activity while jurors are deliberating," and that no other person may be in the deliberation space "because you can't have anyone listening in on discussions." She added that caring for pets during deliberations is also prohibited.

“Can You Get a Fair Jury Trial During the Pandemic?”

That is the title of Cara Bayles’s article in Law 360 this week.  The author interviewed a judge, lawyers, researchers, and members of the legal academy regarding whether litigants can receive a representative jury panel when so many citizens cannot or will not serve on a jury due to stay-at-home orders, limited access to broadband internet service, or personal fear of going to a public courthouse.  Interestingly, both prosecutors and defense attorneys worry that the conduct of trials during the pandemic could lead to an uptick in appeals.  Nina Ginsberg, president of the National Association of Criminal Defense Lawyers, opined, "Anyone who gets a trial that is constitutionally deficient is going to end up appealing if they're convicted.  They'll have a whole other level of constitutional claims that are going to end up getting litigated."

Texas Shares Lessons Learned from Conducting Jury Trials During Pandemic

Since the pandemic struck, Texas has conducted 22 jury trials with dozens more scheduled between now and the end of September.   Earlier this week, the Office of Court Administration released its report on Jury Trials During the COVID-19 Pandemic as required by the Supreme Court of Texas’s Twenty-Second Emergency Order Regarding the COVID-19 State of Disaster. The report sets forth observations from jury trials held since March 2020, including details from the nation’s first virtual criminal jury trial.  The report also contains several informative photographs of logistical setups for those trials. 

Lawyers Will Replace Cowboys at Calgary Stampede Grounds. Reason? Jury Selection!

To afford sufficient social distancing for a jury trial, the Alberta Court of Queen’s Bench ordered voir dire to take place at the Big Four events building and the rodeo grandstand later this month.  Your editor hopes there will be some entertaining tales generated by trial participants.

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North Carolina Enforcement of Batson Under Scrutiny?

After the state supreme court issued a pair of Batson-challenge cases, court watchers there would not be surprised if the Tar Heel State joined Washington State, California, and Connecticut in setting up a commission to examine whether racial discrimination in jury selection is prevalent and, if so, how to address it effectively.

Jurisdictions Across America Grapple with Various Pandemic-Era Logistics for Jury Trials

Jury managers in Kootenai Valley, Montana will conduct voir dires in a middle school gymnasium.  Snyder and Union Counties in Pennsylvania will be using high school auditoriums.  And in San Diego County, officials are discussing renting out movie theatres.  Further north in Contra Costa County, California, courts are installing plexiglass around witness stands. More will be placed in front of the jury panel, and the jury itself will be spread through the courtroom gallery.  In response, defense attorney Joseph Tully remarks, “The question will be, ‘Is it good enough for our constitution?'  Do we have the resources to actually make things constitutionally adequate for accused people facing charges?  How do you choose a jury of your peers while they’re wearing masks, where half of their face is covered up and you can’t tell their human emotions?”  Several counties in Ohio are making one-way stairways for courts to minimize court-user interchanges.  In Kentucky courthouses that are too small for spreading out jury selection proceedings, voir dire will occur in stages with segmented venires beginning in June.  In Connecticut, the Chief Court Administrator, Judge Patrick L. Carroll III, has been speaking with the state's top prosecutor and public defender, following reports of the virus, and consulting with other court administrators throughout the country.  

What Are Lawyers and Citizens Saying About the Re-Start of Jury Trials?

Bloomberg news reports that federal courts are thinking about a bunch of methods to resume jury trials—leading to some skepticism by lawyers and hesitancy by potential jurors.  For example, some trial bar veterans express wonder about how representative jury panels will be if trials resume soon.   Some hope pretrial questionnaires are used more often.  And as for citizen sentiment, we learn that only half of the roughly 600 potential jurors surveyed in a recent Miami-Dade County-Eleventh Circuit poll said they would report for duty in July, citing safety concerns, but more said they’d be willing to appear this fall.  In the words of Lara Bazelon, a law professor at the University of San Francisco, “You’re essentially asking them to be guinea pigs.”  Renee Rothauge, a member of an American Board of Trial Advocates task force studying the prospect of jury trial resumption notes, “This is what I would call a once-in-a-generation opportunity to reassess and reinvent.” 

Jailed Defendant Has Waited 1,300+ Days for a Jury Trial. Will Pandemic Extend That Beyond the Scheduled Trial Date?

The Christian County (Missouri) Headliner News reports that Carl C. Ferguson, 40, is charged with 27 counts for alleged crimes occurring from June 2015 to Aug. 10, 2016.  He has been in the Christian County Jail in Ozark since Aug. 11, 2016.   His jury trial is now scheduled for July 13.  But county officials are not yet certain how to maintain social distancing and other public health safeguards during the trial. 

NCSC Webinar on Jury Trial Management During Pandemic Yields Interesting Poll Results on What States Are Doing

As noted in last week’s Jur-E Bulletin,  NCSC hosted a panel discussion focusing on the development and implementation of new policies to manage jurors and jury trials, lessons learned from pilot tests of remote jury trials and grand jury proceedings, and innovative ways to ensure social distancing and other public health and safety measures with prospective jurors.  During the webinar, several polls were taken from the 1,190+ attendees.  The poll results contain some jaw droppers such as not all courts will frequently clean public areas or require jurors to wear face masks.  

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Judge Who Recently Served as a Juror Tells How Much He Loved the Opportunity New York State appellate judge Gerald J. Whalen writes in the New York Journal about how inspiring it was for him to serve on jury. His essay is a wonderful tribute to jury service. Iowa Supreme Court Creates a “Jumpstart Jury Trials Task Force” The 17-member group composed of judges, lawyers, and an IT director will develop temporary policies and procedures for jury trials that will ensure the “fundamental rights of a defendant” to a jury trial, while at the same time “protecting the health and safety” of the jurors, attorneys, judges and the public. Criminal jury trials are now scheduled to resume on July 13 and civil trials on August 3. Jury Trials Slowly Resume in the UK INext week jury trials will begin to occur on a small scale in the Old Bailey in London and the Cardiff Crown Court. The Lord Chief Justice, Lord Burnett, has not stated when jury trials will resume in other UK courts. Similarly, in the Commonwealth of Australia, jury trials are resuming this month. Jury Selection in a Convention Center? In a Former K-Mart Building? Some Courthouses Can’t Make the Grade! With jury trials postponed until at least July 6, trial courts in Washington State are scrambling to find suitable venues for citizens to return to courthouses. The presiding judge for Pierce County Superior Court in Tacoma is looking at several locations that will meet the health and security needs of jurors and other court actors. Another planning priority is providing assurance that attorney/client conversations and jury deliberations will remain confidential. Possible locations include the Armory Building next to the courthouse, the Greater Tacoma Convention Center, and a former department store. Prospective Juror Says He’s Not Sure He Can Be Fair, But Defense Counsel Makes No Motion to Strike. Should New Trial Be Ordered? A Brooklyn jury convicted Robert Maffei of murder. During voir dire, one of the final jurors admitted he read about the case and “kind of made up my mind.” In response to further questioning, the juror stated repeatedly he was “not sure” he could be impartial. Defense attorney did not move to strike that juror. On appeal, Maffei claimed ineffective assistance of counsel. New York’s highest court rejected defendant’s arguments. The majority opinion stated the “appropriate procedure” to litigate Maffei's appeal was for him to file a motion with the trial judge to vacate the conviction. Associate Judge Jenny Rivera in dissent wrote, “Who would want their liberty in the hands of a person who says they heard about the case, kind of made up their mind based on what they had read because they did not like the circumstances, and then admits they are not sure they can be impartial and fair? Who wants a juror who, at most, can only say they ‘hope’ they can meet this essential requirement for jury service?” Epilogue to Ohio Case Reported in Last Week’s Jur-E Bulletin Last week we reported about a recently aborted jury trial in an article captioned “Ohio Judge Forges Ahead with Jury Trial Despite Evidence of COVID in the Courtroom.” The story derived from a Cleveland.com news outlet. Since then, we received access to the trial judge’s court filing explaining his actions in detail. Learn How State Courts Are Using Innovative Technologies and Responsible Health and Safety Practices to Resume Jury Trials The CCJ/COSCA Rapid Response Team will host a webinar on Friday, May 22, from 3 to 4:30 pm EDT that will focus on state and local efforts to resume jury trials and grand jury proceedings. Panelists will discuss the development and implementation of new policies to manage jurors and jury trials; the experience of courts in pilot tests of remote jury trials and grand jury proceedings; and innovative ways to ensure social distancing and other public health and safety measures with prospective jurors. Register here.