Friday, February 29, 2008

Scruggs--Anonymous Juries

For those not closely following the case of Dickie Scruggs et al., you might have missed the news about the amended juror questionnaire or the government's motion for an anonymous jury. Because of the individuals involved (Dickie Scruggs, Zach Scruggs, Sidney Backstrom, former Senator Trent Lott and most recently Jim Hood, the Mississippi Attorney General) and the issues presented (judicial bribery), this case has received national if not international attention. The following links provide a good summary of the facts and players involved.

Another Not-so-Good Day for the Scruggs Defendants Wall Street Journal

Hood: Thrill might be gone Legal News Line

AG pulled into Scruggs fray Jackson Clarion Ledger

For the purposes of this blog, I would just like to focus on the motion filed by the government requesting an anonymous jury. The defendants' response to this motion can be found here. Previously, I discussed the use of anonymous juries emphasizing the fact that they are a rare occurrence and disfavored by the court. Anonymous juries are normally relegated to situations where jurors may potentially suffer some type of harm, which is not the case here.

The government, in support of its motion for an anonymous jury, cites the potential of outside interference with the jury process and the existence of pretrial publicity as factors in favor of granting the motion. The latter argument appears to be in direct contrast to the government's earlier position on the defendants' request for a change of venue. On that occasion, the government stated that the trial publicity associated with the case was neither remarkable nor prejudicial to the defendants. Basically, it looks like the government is trying to have it both ways, which only serves to further decrease the likelihood that the court will grant their motion.

Wednesday, February 27, 2008

Individual Questioning of Jurors Part II

Previously, I, along with others, blogged about the importance of allowing individual questioning of jurors. Whether such questioning is done by counsel or the judge, it works to greatly decrease the likelihood of empanelling a biased juror. It comes down to the fact that people are less likely to reveal things about themselves in group settings, especially something considered contrary to accepted norms. Also, as demonstrated by a current high profile trial in Michigan involving the killing of a police officer, individual questioning of jurors allows the judge to gauge the impact of pretrial publicity on the jury pool.

In this instance, Kent County Circuit Judge George Buth is allowing both prosecution and defense counsel to individually question potential jurors to see what they know about the case from the media and whether they have formed an opinion about the defendant's guilt. Once the jurors pass this initial screening, they move on to the more traditional voir dire. The use of individual questioning of jurors, which hasn't happened in this County for over 2 decades, appears to be a sort of compromise as the judge previously denied the defendant's motion for a change of venue.

For more information about this case see the following links:

Potential jurors questioned one-by-one
VanVels jury selection, phase 2 WOOD-TV
Extra care taken in picking jury for VanVels trial The

Monday, February 25, 2008

Supreme Court and Jury Instructions

Today, the Supreme Court announced that it will hear the case of Chrones v. Pulido. The issue in Pulido concerns the applicable standard (harmless or reversible error) for jury instructions.

In Pulido, the defendant successfully argued that the jury instructions given at his trial permitted a jury to convict him of felony murder although he only aided in the robbery after the murder (in total, there were two faulty instructions given). Although the errors with the jury instructions were acknowledged, the CA Supreme Court called them harmless and upheld the defendant's conviction. The Federal District Court disagreed and granted the defendant habeas relief, which the 9th Circuit affirmed. In the cert. petition to the Supreme Court, the CA Attorney General argued that the errors in Pulido were harmless because the jury ultimately determined that the defendant aided the robbery during the murder thereby rendering the earlier errors moot.

For more information about Pulido see the following links:

The AEDPA Law and Policy Blog: Pulido v. Chrones

Ninth Circuit Blog: May 2007

Supreme Court to Review Ruling on Harmless Error in Jury ...

Today’s Orders SCOTUSblog

Friday, February 22, 2008

Jury Selection--Individual or Group Voir Dire

According to a report issued by the National Center for State Courts and the State Justice Institute, Connecticut on average takes 10 hours to select jurors for criminal trials and 16 hours for civil trials. In comparison, in South Carolina, voir dire averages 30 minutes. This has led a few Connecticut legislators to push for reform. They argue that the current voir dire process works in favor of the attorney who is billing by the hour and that voir dire should not last longer than the actual trial (both good points).

The disparity between states like Connecticut and South Carolina is attributed primarily to the fact that attorney conducted voir dire moves much slower than judge conducted voir dire (no great surprise here). Another factor, not widely known, is that Connecticut permits individual questioning of every potential juror. A right enshrined in the Connecticut Constitution , Article 1, Section 19, "the right to question each juror individually by counsel shall be inviolate." Thus, lawmakers seeking change seem somewhat constrained, absent passing a Constitutional Amendment.

One possible solution is to require judges to take a more active role in the voir dire process and limit the scope of attorney questions. Also, the Court could use more in-depth questionnaires (see Deliberations Blog) or limit the type of questions that attorneys can ask. However, I believe it folly to prevent individual questioning whether it be done by the attorney or judge. As pointed out by Andrew Sheldon, a trial consultant, "in group settings, people just slip into a socially acceptable means of responding." Thus, it becomes much more difficult to ferret out juror biases.

Wednesday, February 20, 2008

Jury Duty May Lead to Disbarment

The New York Lawyer has an interesting article (sub. req.) about Francis Fahy, an attorney facing disbarment proceedings in CA because of his actions as a juror.

According to the New York Lawyer, Mr. Fahy, in 2004, was on a jury that apparently took too long to decide a medical malpractice claim. Once a verdict was eventually reached in favor of the defendant, the foreperson informed the judge that she was concerned that some jurors "changed their vote only to end deliberations." This, in turn, led the plaintiff's attorney to file a motion for a new trial. In his motion, he included a declaration by the foreperson and a statement by Mr. Fahy which reads as follows: "[I] advised my fellow jurors that I would change my vote if Judge Ballati failed to declare a mistrial...because there was no way I could afford to spend another week away from the office." The plaintiff's motion was ultimately granted and upheld in an unpublished opinion. MacDougall v. Buckley.

Although it took some time, the State Bar of California did eventually catch up with Mr. Fahy who has attempted to back away from his prior statement. Recently, the Bar completed the penultimate stage of his disbarment (waiting for final approval from the California Supreme Court). In the Matter of Fahy, 05-0-05123. According to Judge Lucy Armendariz who heard his case, "he had corrupted a jury by casting the deciding vote in a medical malpractice case just so he could get back to work." The example of Mr. Fahy (who had other ethical problems) highlights some of the residual issues an individual might face, especially an attorney, for failing to properly perform his duties as a juror.

Monday, February 18, 2008

Black History Month--Strauder v. West Virginia

In honor of Black History of Month, I thought it would be good to highlight the case of Strauder v. West Virginia. While most are familiar with Batson v. Kentucky, which I have discussed here and here, few are as familiar with the Strauder case.

In Strauder, the defendant, Taylor Strauder (a former slave) was convicted of murdering his wife with a hatchet. The case was heard by an all white jury because at the time West Virginia law did not allow non-whites to serve on juries. Strauder appealed his conviction to the Supreme Court arguing that the aforementioned law was unconstitutional. In 1880, the Supreme Court heard the case and determined (7-2) that the WV statute violated the 14th Amendment. The Court went on to note that:

"The statute of West Virginia which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law as jurors because of their color, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment."

The Strauder decision, while symbolically important, had little practical effect in areas of the country that historically discriminated against jurors because of their race. Strauder stopped individual states from passing or using laws that on their face prevented blacks from serving on juries, but individuals remained free to discriminate. Furthermore, Strauder, as noted in Virginia v. Rives, did not create in the defendant an affirmative right to have specific individuals or groups on the jury. Interestingly, this idea of affirmative jury selection has been suggested as one way to prevent discriminatory juries.

Friday, February 15, 2008

Registered Sex Offenders--Right to Jury Trial

As most are aware, the 6th Amendment of the U.S. Constitution states that a defendant has the right to a jury trial for criminal prosecutions. In 1968, the Supreme Court in Duncan v. Louisiana held that the 6th Amendment through the 14th Amendment applies to states for all "serious offenses." Generally speaking, an offense is presumed non-serious if the defendant faces less than six months imprisonment; however, this is not necessarily conclusive as explained in Blanton v. City of North Las Vegas. To show that a misdemeanor charge (six months or less) is a serious or non-petty offense, the defendant must demonstrate that the additional statutory penalties associated with the charge "are so severe that they clearly reflect a legislative determination that the offense in question is a serious one."

Recently, the Arizona Supreme Court in State v. Fushek addressed this very issue. In Fushek, a Roman Catholic priest was charged with several sex-related misdemeanors. The defendant requested a jury trial, which the government denied. If convicted, the defendant faced the possibility of having to register as a sex offender for life. The Arizona Supreme Court, after examining and analyzing all the requirements and residual consequences of registering as a sex offender, determined that this statutory penalty, although attached to a misdemeanor charge, was serious enough to warrant a jury trial (if requested by the defendant). Ironically, legislators who passed the registration requirements to get tough on sexual offenders may have ended up providing them additional rights.


Finally, I want to thank Anne Reed for mentioning this blog in her Deliberations blog. Ms. Reed is a well known litigator and trial consultant.

Monday, February 11, 2008

Florida and Peremptory Challenges

In the last few months, Florida has made significant strides in improving its jury system. Earlier this year, it enacted a law to allow jurors to take notes and ask questions, which I previously discussed here. Last week, the Florida Supreme Court upheld its peremptory challenge standard in Florida v. Whitby. The timing of Whitby could not be more apropos as the SCT is considering Snyder v. Louisiana, which I previously discussed here.

As most know, peremptory challenges may not be used to strike a prospective juror because of race or gender. Most state and federal courts follow a three part test to discover improper peremptory challenges: (1) the party contesting the exercise of the peremptory must make a prima facie showing that all or most of the venire members of a racial, ethnic, or gender group were peremptorily challenged by the opposing party; (2) the party then exercising the peremptory must offer a basis for striking the prospective juror that does not implicate one of the three prohibited bases (a very low standard); and (3) the party contesting the peremptory then must show purposeful discrimination, which is difficult to do. According to Justice Breyer, "the use of race-and gender based stereotypes in the jury selection process seems better organized and more systemized than ever before."

In contrast, Florida in Whitby upheld its state standard that only requires the lawyer challenging a peremptory strike to make a timely objection, show the prospective juror is a member of a distinct racial group and ask the judge to request that the other side provide a reason for the removal. Thus, it is much easier in Florida to ensure that neither party is basing their peremptory challenges on either race or gender.

Saturday, February 9, 2008

Celebrity Jurors

Here is an article about the jury experience of a well known NASCAR driver, Jamie McMurray. Not surprisingly, his story is very similar to those provided by other jurors. Here are few lines from the article.

"McMurray said being in the jury room trying to reach a verdict “was almost like a movie. I watched the movie ‘The Runaway Jury,’ and as I’m really living this I’m like, ‘This really is like what happened,’ but you’re actually in charge of someone’s future. I wouldn’t trade it, but I don’t want to go back. If I ever get (called again), I’ll tell them I don’t want to do it because I didn’t realize how intense that was going to be. You certainly pay a lot of attention. It was for four days. If it was a civil case, I probably would do it, but being a criminal case, I’ll never do that again.”

McMurray's celebrity status did lead to one issue that the average juror might not face. The victim's father asked McMurray for his autograph, which resulted in the judge asking McMurray whether this would affect his decisionmaking.

Monday, February 4, 2008

Juries Come to South Korea

In approximately one week, South Korea will hear its first jury trial. Like with other countries in Asia (Japan will again use juries starting in 2009), South Korea has gone to the jury system in an effort to provide greater transparency and increased faith in the legal process. While based on the U.S. model, the South Korean jury has some very unique differences.

For example:
(1) The juries will vary in size depending on the complexity of the case;
(2) The jurors will participate in sentencing; and
(3) The juror verdicts will be based on majority votes and non-binding (at least in this initial trial period).

I will try to provide updates about South Korean juries as they become available.