Monday, February 25, 2013

Jury Trial and the Jones Act: New Law Review Article

Shane O. Balloun, The Defendant's Right to Jury Trial in Jones Act Claims: Washington State's Endicott Opinion Invites Much Needed Supreme Court Review, 9 Seton Hall Cir. Rev. 1-34 (2012)

The Jones Act seaman has de facto power over whether a jury will hear his claim through his ability, under
Panama Railroad v. Johnson, to elect that his claim proceed at law or in admiralty. A significant conflict of laws exists between the federal circuits and several state courts regarding whether this election power means the seaman may divest the defendant of the right to a jury trial by later amending his complaint from law to admiralty. The Fifth Circuit has held that a plaintiff whose at-law Jones Act claim rests on non-diversity jurisdiction may amend his complaint to elect admiralty jurisdiction, even if the defendant previously demanded a jury trial. Several federal circuits that have opined on the issue, including the Seventh and Ninth Circuits, have adopted similar views.

Tuesday, February 19, 2013

Court to Search Jurors Computer

This is one way to cut down on jurors conducting internet research. I am sure that as more jurors learn that the court can order an inspection of their computer they will be more inclined to follow the court's rules on obtaining outside information about the case. Judge orders search of juror's computer drive in Buju Banton case

Monday, February 18, 2013

Right to Public Voir Dire: Commonwealth v. Lavoie

As some readers of this blog are aware, criminal defendants have a constitutional right to a public voir dire (Presley v. Georgia). What is less clear is whether this right can be waived and if so by whom? These issues were decided recently at least for the state of Massachusetts in Commonwealth v. Lavoie.

In Lavoie, the criminal defendant was on trial for murder. During jury selection of his trial, court officers instructed the defendant's father, mother and sister to leave the courtroom. This request was made in order to leave enough room for the jury venire. Apparently, the judge was unaware that the defendant's relatives had been asked to leave the courtroom. The defendant on the other hand knew this fact and was a little bothered about it. However, he never raised the issue with his attorney.

At a subsequent hearing held after the defendant's conviction, counsel for the defendant stated that it was not his usual practice to object when court officers cleared the court for the following reasons: (1) court officers have a difficult job; (2) he doesn't want family members sitting near potential jurors; and (3) family members can be a distraction.

Based on these facts, the Supreme Judicial Court of Massachusetts held that counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy.

Thursday, February 14, 2013

Jurors and Facebook

This article, like so many others, highlights the problems that can arise when jurors turn to Facebook. In this case, the juror used social media to both brag about the speedy deliberations and complain about the lack of an open bar. The exchange between the juror and his Facebook friends is as follows:

Oct. 1: “Got picked for jury duty.”

Oct. 2: “Sworn to secrecy as to details of this case. Most importantly there is no beverage
service and the 3:00 p.m. Cocktail hour is not observed!”

Oct. 5: “Drunk and having a great food at our fav neighborhood hangout.”

Oct. 10: “Back in the box for day 7.”

Oct. 11: “Starting day 8 of jury duty.”

Oct. 11: “Civic duty fulfilled and justice served. Now, where’s my cocktail????”

Oct. 11: Civil case…verdict for the defendants… Yes, I was the jury forearm … Complete
deliberations and verdict delivered in under one hour.”

His friends posted responses like:
Oct. 2: “If he’s cute and has a nice butt, he’s innocent!”

Oct. 9: “I’m still amazed they allow jurors to nip from a flask all day,”

Oct. 9: “Remember nice ass = innocent!”

Oct. 11: “Was it Miss Peacock in the library with the lead pipe?”

I don't think there is enough here to overturn the verdict. However, I am hoping that more stories like this will get the judiciary to implement some real reforms

Wednesday, February 13, 2013

Right to Jury Trial and the WARN Act: New Law Review Comment

Noah Yavitz, The Right to Trial by Jury and the WARN Act, 79 U. Chi. L. Rev. 1629 (2012)

Introduction: Outsourcing. Downsizing. Eliminating redundancy. The mass layoff is a phenomenon susceptible to endless labeling and relabeling, be it by epithet or euphemism, but under any name it represents a massive trauma for workers. Legislators are by no means insensitive to the economic - and political - dimensions of this trauma. In 1988, back when the bogeyman was not China but Japan, Congress tackled the issue with the Worker Adjustment and Retraining Notification Act (WARN Act), which requires firms above a certain size to provide notice before either a plant closing or a mass layoff. To encourage compliance, the Act allows for civil actions against employers who fail to give notice, with liability of up to sixty days' backpay and lost benefits.

Unfortunately, when Congress passed the WARN Act, it neglected to specify the appropriate finder of fact for these lawsuits. In the absence of any express direction, the federal courts have been forced to grapple with whether a plaintiff bringing a civil action under the WARN Act has a Seventh Amendment right to demand a trial by jury. A convincing answer has yet to rise from the scrum - at present litigants are faced with a division of authority. This Comment seeks to resolve that division by using existing interpretations of the Act's remedies to inform the Seventh Amendment analysis.

Tuesday, February 12, 2013

Grand Juror Legal Saga Ends (Atherton v. D.C. Office of the Mayor et. al)

As the blog BLT indicates, the legal saga involving an improperly dismissed grand juror has finally come to an end. The U.S Court of Appeals for the D.C. Circuit has ruled that Peter Atherton cannot sue a prosecutor and a court official for improperly dismissing him from a grand jury.

This case arose from Atherton's service as a grand juror. Atherton claimed that the prosecutor who brought charges before the grand jury had him removed because he asked too many questions. The prosecutor claimed that Atherton was being disruptive and failed to follow instructions. Atherton argued that he could only be removed by a judge, not the prosecutor. The appellate court ultimately determined that the prosecutor and another court official had qualified immunity and the issue about who could remove a grand juror was unclear at the time of Atherton's dismissal.

Although Atherton's suit was ultimately dismissed, his case has led to a new court rule that requires judicial consultation prior to the removal of any grand juror in D.C. Superior Court. His case also might give prosecutor's second thoughts about how they treat grand jurors and the grand jury process as a whole.
The appellate opinion is available here.

Friday, February 8, 2013

Jurors and Social Media in Ireland

As this article indicates, improper use of social media by jurors is not limited to the United States. The problem can arise in any country that uses the jury system.

Irish Examiner: Juror faces contempt after seeing details on Facebook

Friday, February 1, 2013

The Jury Expert

The latest edition of the Jury Expert which is published by the American Society of Trial Consultants is available here.