Prosecutors Want to Run Background Checks on Jurors

Prosecutors in the Whitey Bulger trial recently requested that they be permitted to run criminal background checks on prospective jurors.  Not surprisingly, Bulger's attorneys are opposing the government's request.  Bulger's attorneys claim that

In this case, there is no compelling reason as to why the Court should verify criminal background information provided by the juror. One’s criminal record is no more relevant to the juror’s fitness to serve on the jury than any of the other inquiries into the juror’s background.

To read the defense's entire argument go here. 

I find this story interesting because juror investigations by both prosecutors and defense attorneys have become quite common.  Thus, I am a little surprised to learn that the government would even first seek permission from the court before researching the jurors.

MD Judge Prohibits Attorney from Researching Jurors Online

According to the news story below, a judge in Montgomery County, Maryland has denied a defense attorney's request to research jurors online.  Apparently, the judge finds the practice "totally inappropriate." The case in which the issue was raised resulted in a mistrial; therefore, the attorney did not appeal the judge's decision. Had he appealed, I think he would have won. To date, several states through court rulings have upheld the practice. In fact, in Missouri if an attorney is handling a civil case and she fails to research the jurors in her case on Missouri's Case.net system she may forfeit the opportunity to raise a later claim of juror misconduct. The practice also has support in a NY Ethics Opinion. 

The problem with the judge's decision becomes more apparent when juxtaposing traditional juror research techniques with modern techniques. Historically and even today, attorneys have been allowed to drive by the house of prospective jurors; talk to the juror's friends or neighbors or go to the library to read old news paper articles about jurors. Why then should the court prevent attorneys from going online to gather information about jurors so long as they don't contact them? For more information about the topic of attorneys investigating jurors go here.

Maryland Community Newspapers Online: Montgomery judge denies Internet searches for jury selection

The Dual Face of the American Jury: New Law Review Comment

Stacey P. Eilbaum, The Dual Face of the American Jury: The Antiauthoritarian and Antimajoritarian Hero and Villain in American Law and Legal Scholarship, 98 Cornell L. Rev. 711 (2013).

Introduction: Over the past fifty years, the Supreme Court has extended and elucidated the right to trial by jury. A handful of commentators have argued that modern Supreme Court decisions signal a shift in the Court’s jurisprudence on the jury toward a more functionalist approach that is sensitive to the competencies of juries and their historic role as protectors of liberty in American democracy. Consequently, some commentators have argued that circuit courts should follow the Supreme Court’s lead by leaving behind the formalist distinction between the judge’s law-finding and jury’s fact-finding authority that courts have made since the late nineteenth century. This shift, some commentators argue, would give the jury more authority to decide questions of law and may even pave the way for the jury’s right to nullify the law as instructed by the judge.

Anonymous and Sequestered Jurors (George Zimmerman Trial)

Yesterday, Mark O'Mara, who represents George Zimmerman, filed a motion for anonymous and sequestered jurors.  As some may recall, Mr. O'Mara is representing Mr. Zimmerman in his upcoming second-degree murder trial for the death of Trayvon Martin.  The motion, which focuses on obtaining an anonymous jury, is available here.  If granted, the motion would not require a completely anonymous jury.  Attorneys and court personnel would still have access to the names of the jurors.

Historically, anonymous juries were relegated to cases where juror safety was an issue or when the judge thought that someone might try to influence the jury's verdict. However, judges are now increasingly empanelling anonymous juries in the name of juror privacy. For more background information on anonymous juries go here.

In filing this motion, Mr. O'Mara asserts that
[T]his case is different than most cases because in this case, in that it is Mr. Zimmerman who requests an anonymous jury.  Mr. Zimmerman believes that juror anonymity will promote an atmosphere in which jurors can hear evidence and deliberate without fear of reprisal or harassment.

Mr. O'Mara also claims that
If this Court fails to protect the privacy of Mr. Zimmerman's potential jurors it will endanger his rights to due process of law and a fair trial by an impartial jury.

The motion also makes several references to the Casey Anthony jurors who were subject to extensive criticism for their verdict.  I am not sure how the government is going to react to this motion but I am sure that the media will seek to intervene and respond.  Generally speaking, if a trial judge wants to use an anonymous jury, she has to make factual findings as to why one is necessary.

Jury News

Sun-Sentinel: Ex-juror gets free legal defense against contempt of court charge

HLNTV.com: Juror: What it's like to decide a person's fate

NewsOK.com: Oklahoma County judge finds prospective juror in contempt after ...

Global Post: Juror sues in Japan over murder case trauma - GlobalPost

KYW Newsradio: Judge in Gosnell Case Warns TV Crews Away From Jurors

Memphis Commercial Appeal: Safe in Memphis: Many jurors called, few chosen to solve crimes

Yahoo 7 News: Sydney jurors were Facebook friends

Non-Citizen Jurors

Last week the issue of non-citizen jurors was in the news because the CA Assembly passed AB 1401, a bill that would allow non-citizens to serve on state juries if they are in the country legally. 

89.3 KPCC: Should legal immigrants who aren't citizens serve on juries?
CNN: California mulls letting noncitizens serve on juries

Although the idea of non-citizen jurors may seem like a novel concept it has actually been around for hundreds of years.  For example, England, for close to 500 years, (the practice was eventually abolished by the Naturalization Act of 1870) permitted the jury de medietate linguae, or “jury of the half tongue.”   In a jury de medietate linguae a non-citizen defendant was allowed the right to request that half of the jury consist of non-citizens.  The practice was used to help non-citizens receive fair treatment under the law.  Some have advocated resurrecting the jury de medietate linguae to improve minority representation in the jury box.

In addition to recommending the jury de medietate linguae, defense counsel, representing non-citizen defendants, have repeatedly filed motions requesting that non-citizens be included in the jury array (list of jurors summoned to appear for jury duty).  Generally speaking, judges have ruled against these motions finding that the possible prejudice to the defendant's 6th Amendment Rights is outweighed by the government's substantial interest (understanding the proceedings and commitment to carry out the government's laws) in having only U.S. citizens serve as jurors.

I find these rulings somewhat dubious because being a citizen in and of itself does not ensure that an individual understands the trial proceedings or is committed to following the laws of this country.  This is reflected every day in voir dire where many citizens summoned to jury duty regularly state that the defendant must testify or prove his innocence.  These same citizens then go on to routinely ignore the rules about discussing or researching the facts in the case.

AB 1401 does not remove any requirement that jurors understand the English language; it only expands the number of individuals eligible for jury service.  This bill also increases the likelihood that those tried for criminal offenses in CA are truly judged by a jury of their peers.

In addition, by having non-citizen jurors, we can ensure that those receiving the benefits of living in the U.S. are also fulfilling the civic responsibilities that come with those benefits. This change may also lead U.S. citizens to better appreciate and value the importance of serving on a jury and how such service helps to preserve democracy.

It should also be noted that very few seem bothered by having non-citizens serve in our armed services where they protect this country and safeguard our constitutional principles.  However, for some reason, these same individuals cannot be trusted to serve as jurors.  Ironically, non-citizen service members can actually serve on military juries if summoned. 

Why Jury Duty Matters: New Book

Andrew Ferguson, an assistant professor at the David A. Clarke School of Law at the University of District Columbia, has written a new book entitled Why Jury Duty Matters: A Citizen's Guide to  Constitutional Action.  Unlike many books written on the jury, this one is directed to the actual juror or prospective juror.  According to the author, the book is written to help explain to jurors their role in the constitutional process.  In a way this book serves as a pep talk to those selected to serve as jurors. The book helps explain to them the broader implications of their service beyond just finding someone guilty or not guilty. To watch a video of the author discussing his book go here.