Tuesday, April 29, 2008

Gibraltar Juries

According to a recent government study, juries hearing criminal cases in Gibraltar (an overseas UK territory with a population of around 27,000) overwhelming favor local defendants. Specifically, the study found that locals were found guilty (inclusive of mixed verdicts) in 35.1% of cases and acquitted in 64.9%. Non-locals were found guilty in 73.2% of cases and acquitted in 26.8%. These numbers have led government officials to consider various jury related reform proposals such as:

(1) Relying purely on judges and abolishing juries

(2) Making jury service voluntary

(3) Making non-British residents and service members eligible for jury service

(4) Providing greater protection and privacy for jurors in the courtroom

(5) Using voir dire to screen certain jurors

Another reform proposal that the government may want to consider is implementing a modern day Jury De Medietate. If implemented, this would raise the acquittal rates for non-locals. Of course, the government may be pleased with the acquittal rates for non-locals and instead merely want to lower the acquittal rates for locals. If that is the case, the government could bring back the peremptory challenge.

Sunday, April 27, 2008

Jury Related Scholarship

Here are two relatively new articles about juries.

1. Ma, Ma, Where's My Pa? On Your Jury, Ha, Ha!: Constitutional Analysis of Implied Bias Challenges for Cause, 84 U. Det. Mercy L. Rev. 45 (2007). This law review article discusses the issue of sitting judges and jurors who have a connection (through relatives) with the case that they are deciding. Specifically, the article focuses on the jurisprudence of "actual" and "implied" bias of judges and jurors. Coincidentally, Anne Reed of the blog Deliberations also has a recent post about this same issue.

2. "South Korea Signs On." This article, written by yours truly and published in the National Law Journal, briefly discusses South Korea's move towards incorporating juries into their legal system. Here is an excerpt:

In the United States, jury trials are an everyday occurrence and a constitutional right of the criminal defendant. But many countries like South Korea that have no common law tradition also have no experience with juries. Instead, they rely entirely on judges to determine an individual's guilt or innocence. The idea of entrusting the liberty of the defendant to random citizens, who for the most part lack any legal training and are accountable to no one, is truly revolutionary to them. Yet, despite this lack of familiarity, more and more countries, especially in Asia, are re-examining their legal systems to see if they, too, would benefit from greater lay participation in criminal trials.

As most will recall, I have previously blogged about the use of juries in South Korea.

Thursday, April 24, 2008

Jury Service

Here are two interesting articles discussing jury service.

The first one discusses the importance of jury service and how in some ways it may have more significance than voting.

"We vote, but you’re not even required to vote. There’s virtually nothing that we are required to do as citizens. We are very loud sometimes in asserting our rights and our privileges but we are not always in a situation where we are doing something for the country.”Jury service is especially important, Sheffield said, because of the small number of people on a jury — 12 for both criminal and civil cases.“When you vote, for example, you are one of millions, but when you serve on a jury, you’re one of 12, and your vote is very important, particularly in a criminal case where every vote counts..”


The second one discusses some of the difficulties with summoning prospective jurors who live hundreds of miles from the court.

The Great Falls and Billings divisions are especially large areas that require potential jurors to drive hundreds of miles and possibly spend a few nights away from home. A juror from Opheim, near the Canadian border, faces a 324-mile one-way drive on a two-lane highway to get to the Great Falls courthouse. A juror from Sidney has to travel 272 miles one way to report for jury duty in the Billings division.

Tuesday, April 22, 2008

New law review articles

Gadwood, James R. Note, The Framework Comes Crumbling Down: JuryQuest in a Batson World, 84 B.U.L. Rev. 291-319 (2008).

Henderson, Kirk J. Mandatory Minimum Sentences and the Jury: Time to Revisit their Relationship, 33 U. Dayton L. Rev. 37-57 (2007).

Here is a link to an earlier post about other jury related law review articles.

Friday, April 18, 2008

The U.S. v. Wecht saga continues

As I said a couple of days ago, the Wecht case has yet to dissapoint those interested in jury related issues and today is no different. In documents filed by the prosecution in reponse to the defense's motion to dismiss the criminal charges against Dr. Wecht, the government has included a letter allegedlly written by one of the former jurors on the Wecht case who praises the prosecutor's performance and explains why the jury ended up deadlocked. An excerpt of the letter is provided below:

"I am pleased the federal government has decided to puruse (sic) the charges of fraud against Dr. Cyril Wecht. Following weeks of testimony and challenging deliberations, I was relieved the federal government will pursue this case beyond the most recent jury panel.

"The press has provided information which is distorted, perhaps due to literary liberty or because they jurors interviewed have provided partial truths. While I realize accurate accounts aren't accessed from the press, I would like to insure the truths regarding deliberations and final votes of the jurors are corrected. In fact, for charges 25-41, the majority of jurors found Dr. Wecht guilty, with a vote of 6-5. Some jurors suggested that a final vote be taken on Monday April 7 for all charges, but the foreman resisted; without unanimous vote the jury was decidedly deadlocked.

"The press controversy will persist. Please be encouraged knowing those who recognize evidence from emotion and right from wrong may not respond to the loud shouts of the media, but will quietly pursue justice. Please call if I can be of further assistance in the upcoming months."


Wednesday, April 16, 2008

The case that keeps on giving

For those interested in jury related issues, U.S. v. Wecht, which recently resulted in a mistrial, has been a godsend.

First, there was the unsucessful effort by the judge to empanel sua sponte an anonymous jury. He was overruled by the Third Circuit.

Next came reports that FBI agents paid home visits to jurors after the mistrial to find out why they deadlocked. This led the defense team in a motion to the court to ask how the FBI discovered the jurors' personal information and why it was necessary to interview them. This motion also included a request to dismiss the charges against Dr. Wecht based on Double Jeopardy grounds. The defense claims that there was not "manifest necessity" to support the judge's decision to declare a mistrial. The defense argues that other steps like consulting with the foreman or giving both sides the opportunity to discuss the issue should have been tried before declaring a mistrial.

The retrial of Dr. Wecht is scheduled for May 27th. But, with all the aforementioned problems, not to mention that many believe this case to be politically motivated, it is highly unlikely that a retrial will occur on that date, if at all.

Local Leaders Team Up To End Prosecution Of Wecht

Finally, here is a letter to Attorney General Mukasey from numerous well known Western Pennsylvania residents stating that Dr. Wecht should not be retried.

Sunday, April 13, 2008

Post Verdict Contact with Jurors

The jurors who recently completed their service in the Schuster trial have unanimously decided that they do not want to be contacted by defense counsel.

Schuster jury mum; hopes for a new trial dwindle
Will There Be a New Trial for Larissa Schuster?
Larissa Schuster's defense team suffers a major setback

As previously discussed here, the defense attorney in the Schuster case has raised allegations of juror misconduct and is in the process of appealing his client's guilty verdict. To support his allegations, the defense attorney wanted to contact and interview the trial jurors. The Court, not interested in invading the privacy of the jurors or revealing their personal information, wrote to the jurors asking if they were interested in meeting with defense counsel. Each responded in the negative.

Meanwhile in U.S. v. Wecht, FBI agents recently contacted several former jurors to find out why they were unable to reach a verdict. According to U.S. Rep. Mike Doyle, it "concerns me greatly that the FBI contacted jurors at their homes to request interviews about why they deadlocked. That would be intimidating to just about anyone."

Wecht jurors tell newspaper FBI visited them after mistrial
Waiting for Wecht retrial still can be fun
Prosecution's conduct in Wecht case labeled 'troubling'

This is also the same case where the judge sua sponte tried to empanel an anonymous jury (he was overruled by the 3rd Circuit).

I contrast these 2 cases to show why contacting jurors may at times be necessary to ensure the rights of the defendant. However, such contact can invade the privacy of the jurors and be used for improper purposes. This in turn may cause fewer citizens to want to serve on juries or it may influence future verdicts.

Thursday, April 10, 2008

Jury News

Rather than focus on one issue with this posting, I thought I would highlight some interesting stories and cases recently in the news.

1. With the problem of jurors using the internet to research cases, Australia is considering criminal legislation to "make it illegal for jurors to access outside information on any case in which they were involved."
Internet ban follows Underbelly storm

2. 10 common misconceptions about jury trials
SPEAKOUT: Debunking the top 10 myths of jury trials

3. Alabama House Committee passes law making jury duty optional for those 75 and older
House panel OKs bill to allow some elderly jurors to be excused

4. Jury notices ordered for Wecht retrial (Previous posts on this case are here)
Wecht Jury Selection: Round 2

5. U.S. v. Polizzi (Informing jurors about minimum and mandatory sentences)
Thoughts on United States v. Polizzi - Blogrunner

The Volokh Conspiracy - -

Thoughtful thoughts on Judge Weinstein's work in Polizzi

'Judge's Bizarre Ruling Aids Perv.'

Judge Weinstein: Juries Should Know If Mandatory Minimum Applies ...

There will be more on the Polizzi case in future posts.

Monday, April 7, 2008

Letter to the Editor

Here is a letter to the editor by a former jury foreman who believes he and his fellow jurors made a mistake twenty years ago when they convicted Ben Spencer for aggravated robbery. Mr. Spencer was sentenced to life for the crime.

Why I changed my mind
Re: "Inmate not likely to get DA's backing - Prosecutor says office stands by eyewitness accounts in '87 slaying," Wednesday Metro and "Spencer case deserves neutrality, second look," by Steve Blow, Thursday Metro.

In March 1988, I was wrong and gravely misguided when 11 others and I found Ben Spencer guilty of aggravated robbery and sentenced him to life in prison.

Regrettably, it wasn't until 2002 that the true story began to unfold. While problems with the prosecution stem, in part from lighting difficulties and unreliable eyewitnesses, my turning point came as I heard the live testimony of witnesses testifying that Michael Hubbard had confessed the crime to them in the early days following the March 1987 homicide - evidence that the jury in March 1988 never heard.

During a recess at Mr. Spencer's 2007 hearing before Judge Rick Magnis, I spoke with Ben's prison chaplain, who stated that, while everyone in prison will claim their innocence, "when Ben says it, everyone knows it true."

I believe Ben Spencer is innocent of the crimes that the jury I once led as foreman convicted him for. Judge Magnis clearly believes Mr. Spencer is innocent and deserves a new trial. Just as the Centurion who looked upon Jesus declared, "Surely this was an innocent man," it is time for all the citizens of Dallas and their district attorney to draw the same obvious conclusion.

This letter is interesting for a variety of reasons: (1) it is rare that a juror would follow a case so closely after his/her jury service (the juror even spoke with Mr. Spencer's prison chaplain); and (2) that the juror attributes the incorrect verdict to a lack of evidence at trial. The juror, however, says nothing about any improprieties occuring during deliberations something that if substantiated could overturn the original verdict.

Also, a reporter for the Dallas Morning News where this letter to the editor appeared is urging the government to re-examine this case.

Tuesday, April 1, 2008

Legal Scholarship on Juries

Here is a partial list of recent law review articles on juries. Where available, I tried to provide links directly to the law reviews. Of course, all of the articles are available on either Westlaw or Lexis both of which require a subscription.

1. 2 Charleston L. Rev. 307 Charleston Law Review Spring 2008 Symposium Edition FAIRNESS THROUGH GUIDANCE: JURY INSTRUCTION ON PUNITIVE DAMAGES AFTER PHILIP MORRIS V. WILLIAMS Neil Vidmar and Matthew W. Wolfe

2. 18 Geo. Mason. U. Civ. Rts. L.J. 389 George Mason University Civil Rights Law Journal Spring 2008 Articles FREE SPEECH V. TRIAL BY JURY: THE ROLE OF THE JURY IN THE APPLICATION OF THE PICKERING TEST Robert Wilson

3. 76 Fordham L. Rev. 2027 Fordham Law Review March, 2008 Articles HARMLESS CONSTITUTIONAL ERROR AND THE INSTITUTIONAL SIGNIFICANCE OF THE JURY Roger A. Fairfax, Jr.

4. 33 Law & Soc. Inquiry 31 Law and Social Inquiry Winter, 2008 Article JUDGES AND JURIES: THE DEFENSE CASE AND DIFFERENCES IN ACQUITTAL RATES Daniel Givelber and Amy Farrell

5. 36 SW. U. L. Rev. 853 Southwestern University Law Review 2008 Articles AN ESSAY ON: OF JUDGES AND JURIES REVISITED IN THE CONTEXT OF CERTAIN PRELIMINARY FACT QUESTIONS DETERMINING THE ADMISSIBILITY OF EVIDENCE UNDER FEDERAL AND CALIFORNIA RULES OF EVIDENCE Norman M. Garland

6. 41 U.C. Davis L. Rev. 839 U.C. Davis Law Review February, 2008 Privacy, Policing Homosexuality, and Enforcing Social Norms THE KATZ JURY Erik Luna

7. 43 Harv. C.R.-C.L.L. Rev. 277 Harvard Civil Rights-Civil Liberties Law Review Winter, 2008 Conversation: GPS Monitoring of Domestic Violence Offenders DOMESTIC VIOLENCE DEFENDANTS' JURY TRIAL RIGHTS IN GPS MONITORING Fred Medick

8. 26 Law & Ineq. 203 Law and Inequality: A Journal of Theory and Practice Winter 2008 Article DID THEY FORGET TO ZERO THE SCALES?: TO EASE JURY DELIBERATIONS, THE SUPREME COURT CUTS PROTECTION FOR THE MENTALLY ILL IN CLARK V. ARIZONA Elizabeth Aileen Smith

9. 88 B.U.L. Rev. 291 Boston University Law Review February, 2008 Note THE FRAMEWORK COMES CRUMBLING DOWN: JURYQUEST IN A BATSON WORLD James R. Gadwood

10. 45-FEB Hous. Law. 38 Houston Lawyer January/February, 2008 Feature THE FIRST WOMAN JUROR IN TEXAS Sarah Duckers