Thursday, January 31, 2008

Hong Kong Jurors

For those interested in examining juror qualifications in other countries, here is an article discussing proposed changes to those requirements in Hong Kong, which unlike mainland China, follows the English Common Law tradition. The proposed modifications will extend the age limit for jury service to 70 and add additional educational requirements for jurors.

The current Hong Kong juror requirements are as follows:

A resident of Hong Kong
has reached the age of 21 but is not yet 65;
is of a sound mind and has no disabilities such as hearing or visual impairments that might prevent him / her from serving as a juror;
is of good character, and
has sufficient knowledge of the language of the court proceedings (Chinese or English as the case may be).

In comparison, the requirements for jury service in the U.S. are as follows:

A United States citizen;
be at least 18 years of age;
reside primarily in the judicial district for one year;
be adequately proficient in English;
have no disqualifying mental or physical condition;
not currently subject to felony charges; and
never have been convicted of a felony (unless civil rights have been legally restored)

Tuesday, January 29, 2008

Cross Section of the Community

The Union Tribune has an article on a challenge (scheduled to be heard on February 25th) to how San Diego summons its jurors. According to the article, the "core of the challenge is the analysis by a San Diego State University professor" [John Weeks] who concluded that "Latinos eligible for jury service are underrepresented in the downtown jury pool by 50 percent."

The defense attorney who raised the issue attributes the under representation to two factors:
(1) Erroneously dropping names from the "master list."
Apparently, San Diego is moving in the opposite direction of other locales which are looking ever increasingly at ways to expand their lists.

(2) Giving jurors the option to serve in various parts of the county which are closer to their home. This idea of cutting down commute times for jurors by splitting up the county is also being challenged in Washington.

Sunday, January 27, 2008

Replacing Jurors

Juror replacement has received renewed attention recently as 2 high profile defendants have used the issue to try and overturn their convictions.

The first case involves former Governor George Ryan of IL who was convicted on corruption charges. His defense team last week filed a petition with the Supreme Court alleging among other things that the judge improperly removed 2 jurors from Gov Ryan's trial. These jurors had failed to inform the court about their previous arrest records, which were only uncovered after the jury started its deliberations. More information about this case can be found here.

The second case involves Warren Jeffs who was convicted of two counts of accomplice rape. Jeffs, who wound up on the FBI's Most Wanted List, is the former leader of the controversial Fundamentalist Church of Jesus Christ of Latter Day Saints. He is challenging his conviction based on the trial court's failure to replace a juror who revealed during deliberations that she had previously been a rape victim (something she did not mention during voir dire). In the Jeffs' case, there is a Utah statute which casts significant doubt on whether the trial judge may replace a juror during deliberations. "There is this general notion that once a jury retires to deliberate a case, you should not tinker with the composition of the decision-making body." Utah Criminal Rule 18(g). More information about that case can be found here.

Saturday, January 26, 2008

Manifest Necessity

Generally speaking, placing a defendant twice in jeopardy for the same offense violates the 5th Amendment. However, like most other rules, the Double Jeopardy Clause has numerous exceptions. For example, if the judge declares a mistrial because of "manifest necessity" retrial of the defendant on the same charges does not violate the 5th Amendment.

In an interesting twist on this issue, an Ohio state trial judge declared a mistrial after becoming aware of misconduct by one juror. However, prior to making her oral ruling declaring a mistrial, the jurors in the jury room voted (completed and signed their verdict forms) to acquit the defendant of several of the charges he was facing. In the defendant's subsequent retrial, he argued that the government's case now violated the Double Jeopardy Clause. The (new) judge hearing the retrial agreed and found that there was "no manifest necessity" for the original mistrial because there were numerous other alternative options that the first judge failed to explore, e.g., determining whether actual prejudice existed because of juror misconduct.

This decision to bar re-prosecution, however, was overturned by the Ohio Court of Appeals which found that "manifest necessity" does not mean "absolute necessity." The defendant then subsequently filed a Habeas petition in Federal Court, which was granted. However, this decision was also overturned this time by the 6th Circuit in a 3-judge panel opinion, which included a strongly worded dissent. While noting that the initial judge could have handled the situation better, the 6th Circuit determined that "the likelihood of juror misconduct and corruption" was a possibility and a mistrial was appropriate. Thus, absent action by a full panel of the 6th Circuit or the Supreme Court either of which are likely, the defendant will be retried on all of the previous charges.

Thursday, January 24, 2008

A City of Actors

As most are aware, prospective jurors are generally prevented from serving on jury duty if they have personal or direct knowledge of the facts or individuals involved in the case. And, if a juror with such knowledge keeps it from the court, this can result in a mistrial. Unfortunately, this is not a rare event. What is rare is when jurors acquire this information because they acted in a film that involved the facts in dispute. This was the issue in Ovando v. County of Los Angeles, B186504.

Here, the plaintiff was suing the LA County Public Defender's Office for failing to adequately represent him in his original criminal proceedings. The plaintiff's criminal charges stemmed from the illegal actions of LA's Rampart division. The jury agreed with the plaintiff and found that the County indeed had failed to provide proper representation. However, the verdict was overturned, for among other things, juror misconduct. One of the jurors who heard the civil lawsuit had actually starred in "Gang Warz" a movie loosely based on the Rampart scandal. However, she neglected to tell anyone during her voir dire.

The juror argued that acting in the movie provided her with no “special knowledge of, or familiarity with” the scandal. However, the judge was unconvinced as other jurors stated that this particular juror had far more knowledge about the Rampart scandal to include information that had not been admitted into evidence.

Monday, January 21, 2008

Polls About Juries

Since it is election season and everyone seems to be infatuated with polls and poll numbers, I thought I would pass along this recently conducted poll on juries. The press appears to focus on the fact that the poll results indicate "just under 3 in 5 Americans believe that juries can be fair and impartial all or most of the time." As one might suspect, this view varied significantly depending on the respondents' racial or ethnic background.

To me, however, the more noteworthy finding was the actual number of individuals who have been jurors. According to the poll, only one quarter of the adult U.S. population (around 54 million) has actually served on a jury. I consider this alarmingly low and as further evidence of the need to do more to improve the overall jury experience. Besides voting, no other act of citizenship does more to strengthen and maintain a democracy than serving on a jury.

Friday, January 18, 2008

12 Angry Men

For those who can't get enough of the famous movie 12 Angry Men, you definitely want to read the latest Chicago-Kent law review symposium dedicated to the movie, which celebrated its 50th Anniversary last year. I have listed below the table of contents for those interested in specific topics. Also, I want to thank those at the Jur-E-Bulletin for alerting me to this symposium.

FOREWORD D. Graham Burnett
INTRODUCTION TO THE 50TH ANNIVERSARY OF 12 ANGRY MEN Nancy S. Marder

I. THE AMERICAN JURY
DELIBERATION AND DISSENT: 12 ANGRY MEN VERSUS THE EMPIRICAL REALITY OF JURIES Valerie P. Hans
ANGER AT ANGRY JURORS Jeffrey Abramson
12 ANGRY MEN (AND WOMEN) IN FEDERAL COURT Judge Nancy Gertner
WHY EVERY CHIEF JUDGE SHOULD SEE 12 ANGRY MEN Judith S. Kaye
DELIBERATION IN 12 ANGRY MEN Barbara Allen Babcock and Ticien Marie Sassoubre
A JURY BETWEEN FACT AND NORM Robert P. Burns

II. THE AMERICAN CRIMINAL JUSTICE SYSTEM
THE MYTH OF FACTUAL INNOCENCE Morris B. Hoffman
WAS HE GUILTY AS CHARGED? AN ALTERNATIVE NARRATIVE BASED ON THE CIRCUMSTANTIAL EVIDENCE FROM 12 ANGRY MEN Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman, Jr.
12 ANGRY MEN: A REVISIONIST VIEW Michael Asimow
GOOD FILM, BAD JURY Charles D. Weisselberg

III. 12 ANGRY MEN IN POPULAR CULTURES
12 ANGRY MEN IS NOT AN ARCHETYPE: REFLECTIONS ON THE JURY IN CONTEMPORARY POPULAR CULTURE David Ray Papke
MAD ABOUT 12 ANGRY MEN Stephan Landsman
A DIFFERENT STORY LINE FOR 12 ANGRY MEN: VERDICTS REACHED BY MAJORITY RULE-THE SPANISH PERSPECTIVE Mar Jimeno-Bulnes
THE GERMAN RESPONSE TO 12 ANGRY MEN Stefan Machura
THE GOOD, THE BAD, OR THE INDIFFERENT: 12 ANGRY MEN IN RUSSIA Stephen C. Thaman

IV. UNIVERSAL THEMES
CHARADES: RELIGIOUS ALLEGORY IN 12 ANGRY MEN Bruce L. Hay
FATHERS IN LAW: VIOLENCE AND REASON IN 12 ANGRY MEN Austin Sarat
THE BANALITY OF EVIL: A PORTRAYAL IN 12 ANGRY MEN Nancy S. Marder

Wednesday, January 16, 2008

English Juries

For those interested in learning about how other common law countries select jurors, the BBC news has an interesting piece on the selection of British jurors. These kinds of articles generally come out right before jury selection begins in a high profile or well publicized case. This was true in the Pickton murder trial in Canada, which I discussed here. In England, the current media sensation du jour is the Ipswich murder trial involving the slayings of five so-called ladies of the night in one two-week span.

For those more interested in the actual process of jury selection rather than the salacious details of the Ipswich murders, this article is a good read. One interesting note not mentioned in the article is that unlike the U.S., England has abolished peremptory challenges thus its voir dire is very limited and occurs quickly. I think this point is significant in light of the recent call in this country to follow England's lead in abolishing peremptory challenges--a topic also previously discussed here.

Sunday, January 13, 2008

Jurors Using the Internet

For anyone who has served on jury duty, they know that many jurors are often left confused or with unanswered questions after all the evidence has been presented. As a result, some jurors have turned to the internet for answers despite the admonitions of the judge to avoid reading on researching anything about the case. This article discusses the dismissal of one such jury where the jurors went on-line to look up legal terms like "reasonable doubt."

To avert similar problems in the future, the court could revert to sequestering the jurors. However, this is very expensive and really disrupts the lives of jurors. I believe the better approach is to simplify the legal instructions provided by the judge to jurors and to allow jurors to ask questions and take notes during the trial. This latter reform measure, which I have previously blogged about, was recently instituted in Florida and has been successfully instituted in several other states and on the federal level.

Thursday, January 10, 2008

Anonymous Juries Overturned

As previously discussed and predicted here, the 3rd Circuit has just overturned District Court Judge Schwab's decision to keep the public from knowing the names of the jurors who will decide the Wecht case. The decision of the three member panel was not unanimous, however, as the lone dissenting judge, Van Antwerpen stated that he would have kept the names of the jurors secret until the conclusion of the trial. The panel's written opinion will be issued later. Here are links to other news agencies reporting on the ruling.

Court: Wecht jurors' names to be public
Jurors in Wecht case won't be anonymous
Names Of Jurors In Wecht Case Will Be Made Public

Tuesday, January 8, 2008

Racist Statements Lead To Evidentiary Hearing

The Massachusetts Lawyer Weekly has an excellent article about allegations of juror misconduct in Commonwealth v. McCowen. According to affidavits filed with the court, numerous jurors made racist statements in the jury room. As such, the judge in the case is holding an evidentiary hearing to determine whether the jury's decision was indeed based on a fair, thorough and impartial evaluation of the evidence. In an interesting twist, the defendant's attorney has requested that the judge appoint counsel to the jurors during the evidentiary inquiry.

Monday, January 7, 2008

Military juries

The San Diego Tribune has an interesting article on military juries. In many respects, military juries or court-martial panels are far different from their civilian counterparts. For starters, most service members selected to be panel members have some familiarity with not only the case but also the participants, which happens to be the point of the Tribune article. This is due in large part to the close knit and at times small military communities.

Another major difference is that service members selected to be on the panel must outrank the defendant. Thus, in many instances the panel is not truly made up of the defendant's peers but rather service members who are generally senior in rank and older than the defendant. Also, the panel, unlike most civilian juries, determines not only guilt or innocence, but also sentences the defendant. Finally, in the military, the individual bringing the charges (the convening authority) plays a role in determining who actually sits on the panel--something that would most likely run afoul of the 6th Amendment if done in civilian courts.

Friday, January 4, 2008

Grand Jury and Work Product Privilege

As most are aware, the Rules of Evidence are generally inapplicable during grand jury proceedings. However, certain privileges, like the attorney work product privilege if timely asserted may be recognized. This article discusses the difficulties of asserting such privileges by examining a recent 2nd Circuit U.S. Court of Appeals' case (In re Grand Jury Subpoena Dated July 6, 2005).

Of particular interest is the author's criticism of the 2nd Circuit's failure to require the government to demonstrate that the work product is "essential" to its case. Here is an excerpt of the article:

The Hickman v. Taylor principle incorporated by the 2nd Circuit in criminal matters permits discovery of work product when it is "essential to the preparation of one's case." But what is "essential" in the grand jury context? In in re Grand Jury Subpoena Dated Oct. 22, 2001, the court recognized a difference between "need" in the context of trial testimony, where corroboration is important, and need in the context of grand jury testimony, where the issue is simply establishing probable cause. And the government routinely relies in the grand jury on witness testimony that is not corroborated by recordings and is subject to contradiction. Surely the government in Grand Jury Subpoena established it would be nice for the grand jury to have the recordings; but nice and essential are two very different things.

Wednesday, January 2, 2008

Jury De Medietate Linguae

Here is an article about a non-citizen defendant who filed a motion requesting that non-citizens be included in the jury array (list of jurors summoned to appear for jury duty). The judge ruled against the defendant determining that the possible prejudice to his 6th Amendment Rights was outweighed by the government's substantial interest (understanding the proceedings and committed to carry out the government's laws) in having only U.S. citizens serve as jurors.

Historically, however, this was not always the case. 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.” This practice allowed non-citizen defendants the right to request that half of the jury consist of non-citizens. The practice was used in England to help non-citizens receive fair treatment under the law. Some have advocated using the jury de meditate linguae in the U.S. to improve minority representation in the jury box.