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.
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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.
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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.
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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.”
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.”
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.”
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.”
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.”
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.
Prosecutors present evidence to grand juries in order to obtain indictments. Due to the control that prosecutors have in the grand jury room, many believe that grand juries serve only as a rubber stamp. To help remove or reduce this stigma, the Dallas County prosecutor's office is no longer permitting its attorneys to offer recommendations to grand jurors. Apparently, prosecutors were hesitant to offer recommendations in cases where law enforcement was the target of the grand jury investigation. According to Dallas County Prosecutor John Creuzot,
“[t]his revised policy requires that the facts and evidence will speak for themselves no matter the type of case, and ensures consistent handling of each case presented to the grand jury by his office,” the news release stated.
To read more about this change go here.
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.
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.
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.”
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.
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.)
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 atphannaford@ncsc.org. Thanks for your cooperation.
On January 1, 2022, Arizona became the first state in the nation to eliminate peremptory challenges, the ability of attorneys or parties to object to selecting a proposed juror without stating a reason and without the court’s approval. Under a new Arizona Supreme Court rule, potential jurors can only be excluded for cause such as acknowledged or determined bias related to the participants or circumstances in a case. The new rule supports a growing body of research and data that reveals peremptory strikes often discriminate against people of color in state and local jury selection.The National Association for Presiding Judges (NAPCO) is hosting a webinar called "Arizona’s Groundbreaking Venture…Eliminating Peremptory Challenges in Jury Selection," at 3 PM ET on Thursday, January 27. It will feature a thoughtful discussion about the process and data that brought about the change together with the steps the Arizona courts intend to take moving forward and the plan to measure the impact of the changes.
In State v. Kevin Plain, the African-America defendant challenged his harassment conviction arguing that his right to an impartial jury was violated when 49 potential jurors showed up for jury selection and only 1 was an African-American. His trial took place in Black Hawk County where African-Americans make up 10% of the population. The defendant offered "three practices that he argues caused the underrepresentation of African-Americans in his jury pool:
(1) the failure to update addresses when summonses were returned as 'undeliverable,'
(2) the failure to follow up with jurors who didn’t respond, and
(3) the failure to hold jurors accountable through enforcement proceedings for failing to respond or appear."
In upholding the defendant's conviction, the Iowa Supreme Court found that "[a]ll three of the practices that Plain presents as 'causing' the alleged underrepresentation under the third prong amount to run-of-the-mill practices that the Supreme Court has declined to condemn."
Interesting side note, Paula Hanford Agor, of the National Center for State Courts for Jury Studies testified as a jury expert in this case.
In a growing trend, courts in the South are taking steps to remove confederate symbols from the courthouse. Last year, a Tennessee appellate court overturned an African-American's criminal convictions because the jury that found him guilty deliberated in a room with confederate memorabilia. This week a South Carolina juror was dismissed from an ongoing trial after appearing in court wearing a jean jacket with a confederate emblem.
heraldonline.com: Juror wearing Confederate flag clothing dismissed from York, SC trial, officials say