Thursday, December 27, 2012

Jurors and the Media: New Law Review Article

Charles Nesson, What You Have Said in the Dark: The Evolution of Media in the Courtroom and the New Challenges of Containing the Jury's Information Space, 24 St. Thomas L. Rev. 383 (2012)

The trial system is in a form of crisis. Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system. Given the pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials. This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for court documents, comments regarding the case, or permission to observe certain proceedings. Finally, settling outside of trial also places bargaining chips in the hands of defendants who might face weak odds for trial.

Litigants' desire to avoid trial is likely bolstered by the prevalence of media that now spreads mass amounts of information and misinformation to consumers and jurors at an alarming rate through use of smart phones, laptops, and tablets. Provocative images and half-truths of high-profile trials reach out of television screens and into the bedrooms of incensed viewers. Bias in the media's focus of civil trial coverage, which arguably favors plaintiffs' civil judgments as opposed to defense's victories, may also scare litigants from the prospect of going to trial. As a consequence of increased media coverage, the idea of a contained and secure jury information space is increasingly threatened.

Tuesday, December 18, 2012

Bad Juror Lists: New Law Review Article

Ira Robbins, "Bad Juror" Lists and the Prosecutor's Duty to Disclose, 22 Cornell J.L. and Pub Pol'y, 1 (2012)

ABSTRACT: Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts.

This Article addresses the prosecutor’s duty to disclose bad-juror lists. It reviews the federal Freedom of Information Act, a variety of state open-records acts and their exemptions, the work-product doctrine, the fundamental-fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death-penalty cases). The Article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of bad-juror lists.

The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.

Wednesday, December 12, 2012

Challenging Jury Selection in the 9th Circuit (U.S. v. Hernandez)

In U.S. v. Hernandez a three-judge panel in the 9th Circuit affirmed an illegal reentry conviction in a case in which the defendant argued that in compiling its 2009 master jury wheel, the Southern District of California violated the Jury Selection and Service Act of 1968 and the Constitution.

Applying the absolute disparity rule, the panel held that because a juror source list consisting only of registered voters did not substantially underrepresent African–Americans or Hispanics in the community, the Southern District's failure to supplement that list did not violate the Sixth Amendment. The panel also held that because the defendant neither alleged nor showed discriminatory intent, there was no Fifth Amendment equal-protection violation.

The panel wrote that the Southern District Clerk's Office should not automatically disqualify individuals who express doubt about their English skills, and should not put off preparing statistical jury-representativeness forms required by the Act, but that these technical violations did not frustrate the Act's goals and do not warrant merits relief in this case.

The panel held that the Southern District's dismissal of prospective jurors based solely on a “no” answer to a question whether jurors “read, write, speak and understand the English language” was not a substantial violation of the Act because it did not interfere with the Act's key goals of randomness and objectivity. The panel also held that the defendant did not demonstrate that the Southern District substantially departed from the requirements of the Act by failing to return questionnaires to prospective jurors who failed to answer questions on race and/or ethnicity.

The panel cautioned the Southern District to take note of the statutory violations identified and amend its practices in the future.

Monday, December 10, 2012

Undermining the Texas Jury System: New Law Review Comment

Benjamin Ruemke, Comment, The Undermining of the Texas Jury System from Above, 53 S. Tex. L. Rev. 631 (2012)

The Supreme Court of Texas has a history of controversy that has plagued its rulings with an appearance of bias. Some believe the court has taken it upon itself to effect tort reform through rulings favoring business defendants. If true, the repercussions of this bias not only could unfairly disadvantage plaintiffs, but could also undermine the Texas jury system by rendering jury verdicts irrelevant. This Comment will focus on whether or not the Texas Supreme Court has overstepped its authority by using "no evidence rulings" to overturn jury verdicts and, if so, possible motivations for those findings. Part II of this Comment will discuss statistics of the Texas Supreme Court's rulings, Texas juries, the funding of Texas's partisan elections, and the new standard of review created by the court. Part III of this Comment will review jury verdicts the court has overturned through no evidence rulings by dismissing expert testimony and vague interpretations of precedent. In addition, Part III will promote a merit-based system of judicial selection.

Wednesday, December 5, 2012