Saturday, March 29, 2008

Non-Citizen Jurors

Yesterday, the California Commission on the Fair Administration of Justice held its final public hearing on the use of the death penalty in California.

CA Death Penalty Juries Under Scrutiny KCBS News

State commission hears voices on both sides of death penalty debate San Jose Mercury News

One of the recommendations from the hearing was that more people of color should serve on juries deciding capital cases. The Commission went on to discuss the need to go beyond drivers' license rolls to find potential jurors. This finding nor the subsequent recommendation were surprising or even new to anyone vaguely familiar with the issue.

While I applaud the efforts of the Commission and any entity that attempts to tackle the problem of jury diversification, I believe we need to carry the debate further and examine the idea of larger wholesale changes. If we truly want diversification and defendants to be tried by a jury of their peers then we should permit non-citizens to serve on juries, a concept that I have blogged about previously.

Allowing non-citizen jurors would be especially appropriate in areas of the Southwestern United States where they would increase the odds that defendants are tried by a jury of their peers (Of course, these non-citizen jurors must be able to understand English.). 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.

Also, the idea of having non-citizens on juries is not untried. Previously, I discussed the English concept of Jury De Medietate Lingue which allowed non-citizen criminal defendants to have a certain number of non-citizens on their jury. Finally, I have yet to hear a legitimate governmental justification for requiring jurors to be citizens--maybe others have.

Wednesday, March 26, 2008

Juries in San Diego

Here is an interesting twist on an issue that I previously blogged about: the use of the jury summons in San Diego. It appears that now the local District Attorney (DA) also has concerns about the jury summons process and is calling for "court officials to fix a flaw in how jurors are summoned to the downtown courts."

As you may recall, this issue was originally raised by two local defense attorneys (Christopher Plourd and Donald Levine) who argued that Latinos were underrepresented in downtown San Diego juries. At the core of the defense attorneys' argument 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 attorneys attribute the under representation to two factors:

(1) The Court 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.); and

(2) The Court giving jurors the option to serve in various parts of the county which are closer to their home.

It is this last factor that is cited by the DA in its letter to the Court questionning the current process. According to the DA, the central judicial district receives 70 percent of the jury summonses; however, it only has 45 percent of the eligible jurors. The DA is calling for the summonses to be sent out county wide in the same proportion as the number of eligible jurors. While this will incovenience many who live far from the downtown area, it will ensure that certain segments of the population are not underpresented in the jury pool.

Sunday, March 23, 2008

Snyder v. Louisiana cont.

There seems to be several schools of thought on the recent Snyder v. Louisiana Supreme Court decision (more background information on the case can be found here). Some think the decision does little to alter the current judicial landscape in which defendants struggle to prove that a prosecutor exercised her peremptory challenge because of a juror's race (this is due, in large part, to the fact that almost any race neutral reason offered by the prosecutor for striking a juror is accepted by the court.)

They state that: "the Court's decision appeared to be a straightforward application of the 1986 decision in Batson v. Kentucky and sequels to it---decisions that barred race based uses of automatic ("peremptory") challenges in criminal trials. Scotus Blog

Others see the decision as far more significant: "the case seems to shift the burden of an ambiguous record from the opponent of the strike to the proponent of the strike." "The decision all but invites litigants to now raise the "mixed motives" issue." Volokh Conspiracy

And there are those somewhere in the middle: "A Narrow, Broad Opinion in Snyder." Deliberations

Personally speaking, I believe the Supreme Court was trying to send a message as indicated by the fact that this was the second remand of this case. Knowing the difficulty with proving a Batson claim and the dislike of some on the Court for peremptory challenges, this decision appears to emphasize the need for judges to be more than just courtroom decorations and take an active role in the jury selection process to include holding attorneys accountable when they improperly exercise their challenges. Put another way, lower courts need to thoroughly document on the record the prosecutor's use of a peremptory challenge, especially if it even remotely looks as though it was based on race or gender.

Other interesting aspects of the Snyder decision include the voting pattern of the justices with Alito writing the majority opinion and Scalia and Thomas in dissent. Sentencing Law and Policy.

Some have also wondered about the standard of review used in the majority opinion:

"Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Miller-El v. Dretke, supra, at 277 (Thomas, J., dissenting). (some have speculated that this was an attempt to sway or win-over Justice Thomas). Volokh Conspiracy

Finally, Court-O-Rama notes that "the trial court's ground's eye view is relied on by both the majority and the dissent. On the one hand, Justice Alito and company say 'shoulda known better,' trial court and fixed the situation. The Dissenting Duo say that *because* the trial court knows best, let'em be."

I would be interested in hearing from others about what they see as the long term impact, if any, of Snyder v. Louisiana.

Thursday, March 20, 2008

Snyder v. Louisiana

The Supreme Court in a 7-2 decision (Thomas and Scalia dissenting) ruled that a Louisiana prosecutor improperly exercised his peremptory challenges to exclude blacks from the trial of Allen Snyder who was convicted and sentenced to death. This Supreme Court ruling (Snyder v. Louisiana) not only overturned Mr. Snyder's death sentence, but also returned a little life to Batson. And, as one might expect, the Court's decision has received a lot of attention. Below are a few links discussing the case.

Court Details Opposition to Bias in Jury SelectionNew York Times,

Failing the Batson Test Washington Post

Murder Conviction Overturned The Associated Press

Justices Overturn Death Sentence New York Times

High Court Nixes Louisiana Death Sentence WCBS-TV New York

High Court Nixes Louisiana Death Sentence CBS News

Murder conviction overturned The Charlotte Observer

High court tosses La. death sentence USA Today

U.S. justices detail opposition to racial bias in jury selection International Herald Tribune

Death sentence is overturned Worcester Telegram & Gazette

Supreme Court overturns conviction in prosecutor's 'O.J. ' case KATC 3 Lafayette

I plan to offer a much more in depth analysis of the case in the next couple of days.

Wednesday, March 19, 2008

Jury Nullification and the Wire

This is a little late (I apologize, I don't have cable). The writers of HBO's police drama the Wire, which aired its final episode on March 9th, wrote an opinion piece in Time magazine recently extolling the virtues of jury nullification in cases involving illegal drugs. Specifically, the writers of the show state:

"If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented."

The piece then goes on to explain that "[j]ury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger."

Not surprisingly, this opinion piece drew the attention of several media outlets and blogs.

Law Blog - : Creators of "The Wire" Indict War on Drugs, Offer ...

Indefensible: The Wire and Jury Nullification...

What the opinion piece didn't mention is that unlike the jurors of Peter Zenger's time who had few options but to refuse to convict, modern day jurors can directly impact and change the laws by which they are governed. In fact, any citizen can.

Jury nullification should be reserved for those isolated instances where a guilty verdict, despite the evidence presented, is inappropriate for the facts of that specific case. Jury nullification should not be used as a way of overturning a policy created by democratically elected officials. That is the easy way out and if done too often will have a devastating impact on the entire jury process not to mention democratic values.

This country, as part of its so-called "War on Drugs," began in the mid-1980s a policy of passing laws mandating minimum/mandatory sentencing for minor drug crimes. These laws, as the opinion piece notes, have destroyed lives and done far more harm than good. However, they will not be changed or undermined by random acts of jury nullification, but instead must be addressed in the same fashion as in which they came about.

Monday, March 17, 2008

St. Patrick's Day

In honor of St. Patrick's Day, I wanted to briefly highlight Irish Juries. Anne Reed, editor of Deliberations blog, has an interesting post focusing on juries in Northern Ireland. Also, the following link gives an overview of how juries operate in Ireland (Eire). I note that Irish jurors may take notes and ask questions (something I strongly agree with). But, unfortunately, they aren't paid for their services. However, they do receive lunch when serving as jurors. Maybe this lunch idea would increase jury participation in the US?

Friday, March 14, 2008

Jurors and the Bible

Here is an interesting post by the Decision of the Day blog about jurors using Bibles.

During the case of U.S. v. Lara-Ramirez, a juror brought in and used a Bible during deliberations. In fact, she quoted from the Bible and urged other jurors to consider specific portions. Upon learning of the juror's actions, the District Court declared a mistrial. The defendant then moved to dismiss the indictment based on the 5th Amendment's Double Jeopardy Clause. The trial judge denied the defendant's motion holding that the original mistrial was due to "manifest necessity."

As previously discussed, if a mistrial is declared because of manifest necessity the government may retry the defendant on the same charges. However, Courts generally view dismissals based on manifest necessity as a last resort and only to be used if there are no alternatives available to allow the trial to go forward. The 1st Circuit Court of Appeals, in examining the defendant's appeal of the District Court's decision, applied the following test to determine whether the trial judge's exercise of manifest necessity was indeed reasonable:

(i) whether alternatives to a mistrial were explored;

(ii) whether counsel had an opportunity to be heard; and

(iii) whether the judge's decision was made after sufficient reflection.

In looking at the first prong, the Court of Appeals held that the judge could have given the jurors curative instructions to disregard references to the Bible. Furthermore, (and the point that I think is the most debatable) the Court of Appeals found that the Bible's presence in the jury room is not per se grounds for a mistrial because the Bible is like any other type of extraneous information that may taint the jury's deliberation. As such, the Court of Appeals went on to say that the trial court should have investigated the "colorable claim of juror taint" caused by the Bible.

Ultimately, the Court of Appeals ruled that the trial court failed to act reasonably in declaring a mistrial based on manifest necessity. The indictment against the defendant was dismissed.

Wednesday, March 12, 2008

Anonymous Jurors to Receive Court Letter

The defense attorney for Larissa Schuster, who raised allegations of juror misconduct, has won a partial victory in his quest for a new trial for his client. As you may recall, Ms. Schuster was convicted of murdering her husband by sealing his body in a barrel of acid. See the links below for more background information on the trial: Surprising Admission In Larissa Schuster Murder Trial 11/06/07 - Larissa Schuster trial

Larissa Schuster - Message Boards

Because of the notoriety surrounding the initial charges, the judge kept the identities of the jurors secret. This according to the defense attorney made it difficult to pursue his claim of juror misconduct, which appears to be based on the removal of one juror and the actions of a district attorney investigator.

The defense attorney requested that the trial judge stay sentencing while he further pursued the issue of juror misconduct. The trial judge refused. However, California's 5th District Court of Appeals disagreed with the lower court's opinion and allowed the stay while they considered whether the defense should be allowed to interview the jurors.

Rather than wait for the Appellate Court to reach a final decision, the trial court is now allowing the defense attorney to send a letter mailed by the court to the jurors (including the alternates) asking them whether they would object to being contacted by Schuster's defense team. A hearing will later be held on April 11 to see which jurors may actually be contacted by the defense. Any juror who fails to respond will automatically have his or her contact information given to defense counsel.

Sunday, March 9, 2008

The Art of Picking a Jury

I normally don't use an entire blog entry to highlight one newspaper article, but this is a good one that illustrates the views of the various players involved in the jury selection process.

"Assistant District Attorney Chuck Hughes, who handled more than 50 cases and won all but a handful, said his philosophy was simple: "Look for people with a stake in an orderly society."

"VanWagenen, who started his career as a deputy district attorney before becoming a defense counsel,...said he has a basic rule: Try to find 12 people who are willing to listen and not entrenched in their thinking."

"I pretty much tell them don't start reading the law (to potential jurors), that is my job," said Judge Rodney Walker, who has overseen hundreds of trials over his decade-plus career. "Otherwise, I allow them to do their jobs."

"Sarah E. Murray, senior jury consultant for Trial Behavior Consulting in San Francisco, said...
"It is a matter of knowing group dynamics," she said. "A jury is more than the sum of its parts."

Friday, March 7, 2008

Anonymous Jurors Allowed in Scruggs

Contrary to my earlier prediction, the Court has granted the government's motion for anonymous jurors in the Scruggs et al. case. It appears that the Court primarily based its decision on the defendants' past attempts (allegedly) to "interfere with the judicial process." As you will recall, bribery of a state judge is a central charge in this case. The Court also listed extensive pre-trial publicity, the potential for lengthy prison sentences if the defendants are convicted and the extended juror questionnaire as additional factors supporting the use of anonymous jurors.

I believe the Court's order is definitely an appealable issue. The Court has chosen to impose the most restrictive form of an anonymous jury in that neither the prosecutor nor defense attorneys will know the names of potential jurors.

Thursday, March 6, 2008

Johnson v. California--The Aftermath

As most will recall, in 2005, the Supreme Court in Johnson v. CA determined that the Batson standard as applied by CA courts was too demanding. (Interestingly, CA had been applying the Batson principle since 1978, long before it was mandated by the Supreme Court in 1986.)

In Johnson, the defense cited statistics and the racial aspects of the case (the defendant was black and he was accused of abusing his white girlfriend and killing her biracial child) as grounds for its Batson claim. However, this was insufficient evidence under the CA Batson standard (as way of contrast one might want to look at the FL standard previously discussed here), which held that a prosecutor only need to explain her juror challenges if the defendant can show that discrimination was the likely cause for those challenges. Or put another way, the defendant must demonstrate a "strong likelihood" that the prosecutor's juror challenges were based on race. This higher standard, however, was struck down by the Supreme Court in 2005 when it held that a defendant making a Batson claim need only show "an inference of discrimination."

Well, the Johnson case has finally made it back to California state court where a hearing was recently held to apply the Supreme Court's Batson standard. At the hearing, the prosecutor testified that at the original trial he had graded all the jurors based on their pre-trial questionnaires. Yet, the prosecutor was unable to give a satisfactory answer as to why one of the black jurors who had a higher grade than other non-black jurors was nonetheless challenged by the prosecutor. This inconsistency resulted in the granting of a new trial for Johnson.

Monday, March 3, 2008

Lay vs Professional Jurors

There is an interesting article or series of articles in the LA Times about twice convicted pedophile, Sidney Landau who is currently fighting to be released from the state mental hospital. Although Landau completed his original sentence, the DA petitioned the court to keep Landau incarcerated. In 2006, a jury voted 11-1 to release Landau. However, since the verdict was not unanimous a mistrial was declared. Last month, another jury voted 8-4 against Landau's release. A third trial is scheduled for March 17th.

In the article, the jury foreman of the most recently completed trial states that lay jurors like himself should not be used to determine whether a pedophile is ready to return to society. Instead, he urges using a panel consisting of trained professionals familiar with rehabilitation and pedophiles (the jury foreman has approached his CA Assemblyman about the idea). This raises a very interesting question about when, if ever, professional jurors should be relied upon. The author of the LA Times article suggests employing them in situations like Landau's when after several attempts jurors are unable to reach a unanimous conclusion. Although I believe the Constitution would prevent such use, I am interested in hearing what others think of this idea.