Tuesday, July 29, 2008

International Jury Developments

Lately, there have been several interesting articles about jury related issues occurring outside of the U.S..

The Australian News discusses the actions of a rogue juror who independently met with the defendant during deliberations. This resulted in the trial being aborted. I assume this is similar to a mistrial.

Meanwhile, the Jamaica Gleaner examines a new government initiative calling for non-unanimous jury verdicts in non-capital cases. Not surprisingly, this push for non-unanimous verdicts some as low as 9-3 comes on the heels of increased criminal activity in Jamaica.

Finally, the Georgian Times has an article about the introduction of juries to the Republic of Georgia. Most are aware that countries like Japan and South Korea have or will shortly introduce the jury system to their respective countries. However, few realize that Georgia the former Soviet Republic will also test out its own jury in 2009.

Sunday, July 20, 2008

Batson and the 9th Circuit (Green v. LaMarque)

Last week, the 9th Circuit continued its pattern (at least since 2005) of overturning California criminal convictions because of improper or flawed jury selection. In Green v. LaMarque, the Court found that the prosecutor improperly used his peremptory challenges to exclude six African-Americans from the jury panel.

As most are aware, Batson v. Kentucky provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was improperly based on race. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

In Green, the 9th Circuit determined that the California Court of Appeals "failed to reach step three in the Batson analysis." The Court went on to say that "the [trial] court never fulfilled its affirmative duty to determine if the defendant had established purposeful discrimination." The Court then proceeded de novo to conduct that type of review. Ultimately, the Court determined that the grounds proffered by the prosecutor for striking one of the Black jurors (Deborah P.) were equally applicable to white jurors who nonetheless were seated on the jury.

For more background information on the case see:
Court Rules Prosecutor’s Peremptory Strikes Were Racially Motivated

Court finds racial bias in jury selection

Monday, July 14, 2008

Jury Selection in Child Sexual Assault Cases

In order to examine the process and problems of prosecuting child sexual crimes, the Kansas City Star is running a series of articles about the four-day trial of David A. Brake. The trial was held in open court and accessible to the public beginning May 21. The most recent installment examines the difficulties that arise in selecting potential jurors. The article illustrates the problems that both defense attorneys and prosecutors face when trying to select jurors by highlighting how potential jurors react and deal with tough questions about allegations of sexual assault against children.

Wednesday, July 9, 2008

Juror Questionnaires

•If you moved to New Hampshire, why did you move here?

•If you watch television, list your three favorite shows.

•Do you vote regularly?

•If you use the internet, what websites do you frequent?

•How afraid are you of becoming a victim of a serious crime?

•What do you think of the death penalty? (Multiple choice, ranging from "strongly favor" to "no opinion.")

Only 137 (the most recent OJ trial juror questionnaire only had 81 questions) more to go if you are lucky enough to be considered for the Jay Brooks' capital murder trial scheduled for early fall in New Hampshire state court. Apparently, the attorneys on the case wanted eight additional questions but the judge deemed them overly intrusive as they covered areas like political party affiliations, use of bumper stickers, letters to the editor and philosophical leanings.

For more information about the 30 page questionnaire see the following news articles:
Lawyers seek details on jurors
Getting to know your jurors
Screening begins for hundreds of potential jurors

On the federal side, the Philadelphia Daily News reports that attorneys for State Representative Vince Fumo and the government are meeting with Federal District Judge William Yohn to hash out exactly what questions will be put to prospective jurors in the defendant's upcoming trial for obstruction, fraud and tax related offenses. Apparently, defense counsel is really interested in finding out whether potential jurors view politicians as trustworthy or untrustworthy.

Monday, July 7, 2008

Release of Juror Information

Today, the North Dakota Supreme Court decided Forum Communications Company v. The Honorable John T. Paulson. This case was brought by a media outlet interested in obtaining additional juror information. Specifically, the plaintiff wanted to learn the last name of the jurors of the Moe Gibbs murder trial and gain access to their in depth questionnaires (37 pages). However, the trial court wanted to keep this information private to protect the privacy of the jurors. The case involved the murder of a local college student and had been well publicized, so much so that it had already had one change of venue.

The ND Supreme Court relying extensively on Press Enterprise agreed with Forum Communications about the last names. As for the questionnaires, the case was sent back to the lower court so that it could reexamine whether sufficient cause existed to withhold such information. Writing in a concurring opinion, Chief Justice Gerald W. VandeWalle highlighted one potential future problem that may arise with the release of such information.

In an effort to "reasonably" protect the privacy of prospective jurors the district court, in future cases, may be unwilling to allow such an "expanded" jury questionnaire. While counsel or the self-represented party may ask those questions during voir dire in open court, it is problematic that they will ask each juror 34 pages of questions during that time or that the district judge will allow that depth of questioning in view of the court's responsibility to reasonably protect the juror's privacy. Thus the agreement to keep the questionnaires confidential has some logical purpose.

As for the issue of trial judges promising jurors confidentiality that was also addressed in the opinion.

We suggest that these expanded jury questionnaires be accompanied, such as was done in this case, by a paragraph that states in unambiguous language that the questionnaires will become public records and, as an alternative to writing in sensitive personal data to a question, jurors can respond to the question by requesting a closed appearance before the judge with counsel and the accused present.

But, as pointed out by the Chief Justice, will this caveat really improve the overall process or make it worse? Personally speaking, I don't think it encourages juror truth-telling.

Saturday, July 5, 2008

Wecht Update

Regular readers of this blog know that the Wecht prosecution and trial has been a godsend for those interested in jury-related legal issues see e.g., here and here. The latest turn involves a reunion of sorts with Wecht and some of the jurors who served on his first trial. Here is an article discussing the recent get-together.

A message on PNC Park's electronic scoreboard welcoming a special group to a recent baseball game went unnoticed by those it was intended to honor. That's because Dr. Cyril H. Wecht, along with five jurors who voted to acquit the former Allegheny County coroner at his federal public corruption trial, still were tailgating in the parking lot.

To continue reading go here

Wednesday, July 2, 2008

Jurors and Dictionaries

The issue of jurors using or requesting dictionaries appears to arise every couple of months. We saw it in the Governor Ryan, Scooter Libby and Moussaoui trials and will probably see it more in the future as technology advances and dictionaries become more accessible (think Iphones). The latest example of a jury searching for definitions involves a civil trial in South Dakota.

In that case, the jury during deliberations sent a note to the judge asking for a definition of the phrase "imminent apprehension of such contact." The judge refused to define the phrase and told the jurors that they should rely on existing instructions. Later on, the jurors sent another note to the judge requesting a dictionary. This request was also denied. However, one stealthy juror took it upon his/her own to sneak a dictionary into the jury room. This in turn led the judge to individually question each juror to determine the extent, if any, of the dictionary's influence on deliberations.

Generally speaking, use of a dictionary by a juror is not per se prejudicial. Like with most extrinsic influences, courts take a case by case approach to determine whether the proceedings have been improperly influenced by the dictionary. Some of the factors courts have traditionally considered when grappling with this issue are as follows:

(1) whether the dictionary was used to look up legal or non legal terms;

(2) whether there was a significant difference from the definition given in the instructions and one found in the dictionary;

(3) whether the jurors substituted the dictionary definition for a term given in the instructions;

(4) whether the dictionary was discovered before the verdict was reached; or

(5) whether any party was prejudiced by the jury's use of the dictionary.

I believe the problem of jurors relying on dictionaries could be greatly reduced if all jurisidictions permitted juror questions during trial and jury instructions included understandable and simplfied definitions.