Tuesday, December 31, 2013

When Defendants Waive Jury Trials Get it in Writing: (U.S. v. Shorty)

A recent three judge panel decision in the 9th Circuit illustrates the importance of putting any waiver of rights by the criminal defendant in writing.  In U.S. v. Shorty, the defendant was able to get his conviction for firearm-related charges overturned  because his trial judge was not thorough enough in accepting the defendant's waiver of his 6th Amendment right to trial by jury.  The panel found that the defendant's jury waiver was not made knowingly and intelligently. 

According to the panel, the defendant and the judge engaged in the following colloquy with respect to waiving the right to a jury.

Defendant: Yes.
Court: Alright. 12 people would sit, listen to the evidence, and then apply the facts to the law, all of the testimony and all of the evidence that's submitted, and then make a determination as to whether or not you're guilty of these offenses. Do you understand that?
Defendant: Yes, ma‘am.
Court: Alright. And so you're telling me that you would rather not have the jury trial, you're willing to waive your right to that trial; is that correct?
Defendant: Yes.
Court: And you are—according to your lawyer, you would like to have a trial to the Court, which is to me. Do you understand that?
Defendant: Yes.
Court: And that's how you would like to proceed?
Defendant: Yes.
Court: Alright.

The panel found this colloquy deficient because the trial judge did not get the defendant's waiver in writing nor did  the judge tell the defendant, who earlier informed the court that he had a low IQ, that

he could help choose the jury or that the jury verdict must be unanimous.Moreover, the court did not question Shorty in a way that would ensure that he understood the two pieces of information he was given.

Interestingly, the panel did not buy into the government's argument that the defendant's waiver was knowingly and intelligently because he had prior experience with the criminal justice system.  According to the three judge panel of the 9th Circuit,

we are aware of no case in which we have held that prior experience with the criminal justice system negates a court's responsibility to conduct an adequate colloquy before accepting a jury-trial waiver.Second, there is no evidence that Shorty had been properly instructed, on these prior occasions, of what his right to a jury trial entails. Finally, even if Shorty was properly instructed on his right to a jury trial, nothing suggests that he retained that information ten, fifteen, or even twenty years later when he waived the right again in 2010

Bottom line:  When a criminal defendant wants to waive his right to a jury, get it in writing.

Monday, December 30, 2013

Jury Vetting in Canada: New Law Review Article

The Jury Vetting Cases: New Insights on Jury Trials in Criminal Cases
By Vanessa MacDonnell
ABSTRACT:  In this article I discuss the Supreme Court of Canada’s decisions in the jury vetting cases of R v Yumnu, R v Emms, and R v Davey. I suggest that while the Supreme Court’s ruling goes a long way toward eliminating the concerns associated with jury vetting, there is a disconnect between the Court’s description of the jury selection process and how counsel tend to think about jury selection in criminal trials. While counsel are limited in their ability to influence the jury selection process, the Court might nevertheless have considered whether a full ban on jury vetting was needed to combat the risk – both real and perceived – that the Crown might act unethically during the jury selection process. I also examine whether the Court’s comments about the essential and inalienable features of the jury contribute to our understanding of the right to trial by jury enshrined in s 11(f) of the Canadian Charter of Rights and Freedoms.

Monday, December 23, 2013

Insurance Policy for Jury Duty in England

The British article below talks about an interesting concept that I don't believe exists in the United States.  According to the article, certain insurance policies in Britain will pay you for lost employment wages while serving as a juror.

This is Money: Verdict: Jurors can claim costs on house cover and get payout for doing civic duty

Saturday, December 21, 2013

Social Media in the Courtroom: A New Era for Criminal Justice

Here is a link to my interview that aired today on CSPAN2.  In the interview, I discuss my new book Social Media in the Courtroom: A New Era for Criminal Justice. The book which is available here examines the different ways social media has impacted the criminal justice system to include looking at how it has influenced the behavior of crime victims, criminal defendants, law enforcement, jurors, attorneys and judges.

Wednesday, December 18, 2013

Why Don't Juries Try 'Range Voting'?: New Law Review Article

New law review article by Professor Enrique Guerra-Pujol


Why Don't Juries Try 'Range Voting'?

Abstract: The author proposes the use of a simple "range voting" method by juries in which jurors would rate or score on a scale of zero to ten (or some other specified scale) the evidence presented by the parties at trial. The jury’s verdict would thus consist of a numerical value, either the average or the sum total of all the individual scores, which the author refers to as a "range verdict." Range voting by juries thus produces a numerical verdict, a range verdict, consisting of an average value or total sum, and a plaintiff or other moving party would prove his case as a matter of law only if the average value or sum total of the jury’s collective score exceeded some critical threshold value. In addition, the author explains how range voting solves several problems endemic to juries, including holdouts, strategic jurors, and ignorant or partially informed jurors. Lastly, the author also explains how range voting improves jury accuracy and examines the relation between his proposed model of range voting in juries and the diversity prediction theorem in mathematics or "wisdom of crowds" effect.

Tuesday, December 17, 2013

Using Jurors to Explore Public Attitudes to Sentencing

Using Jurors to Explore Public Attitudes to Sentencing 

Written by

Kate Warner of the University of Tasmania
Julia Davis of the University of South Australia - School of Law

Brit. J. Criminol. (2012) 52, 93-112

Abstract: This paper reports the findings of an innovative method of ascertaining public opinion about sentencing — namely using jurors in actual cases to explore both the appropriateness of the sentence imposed in the juror’s trial and more general views about sentencing levels. Contrasting images of public opinion emerged: a punitive public in relation to general perceptions of leniency and a more merciful public in relation to individual cases. The extent and reasons for this dichotomy are explored, as are differences in levels of satisfaction for different offense types.

Monday, December 16, 2013

CA Backtracking on Jurors Who Google

2 years ago California was one of the first states in the country to pass legislation making it a criminal offense for a sitting juror to go online and either research the case or talk about it with others.  Now, it appears that some in California are having second thoughts about this law.   Last week, the California Judicial Council asked the state legislature to repeal the law.

Apparently, some are concerned that the new law will inhibit judicial investigations of alleged juror misconduct.  Although the judicial council could not cite to any cases where this has occurred, some believe that jurors might invoke their 5th Amendment right to silence rather than talk about any potential misconduct that they could be prosecuted for.

Members of the judicial council believe that a better approach would be to repeal the current law which still leaves the court the option of punishing jurors with civil contempt.  And, unlike the current law, the judge, not the prosecutor, can immunize a  juror from civil contempt.

To read the report and recommendations by the judicial council go here.

Thursday, December 12, 2013

Fire an Employee Because of Jury Duty, You Might Face Criminal Charges

The Indianapolis Star is reporting that a local doctor has been criminally charged with interference with jury service for firing an employee who missed work because of jury duty.  The interference with jury service statute, which carries a maximum penalty of 180 days in jail and a $1,000 fine, reads as follows:

A person who knowingly or intentionally:
(1) dismisses his employee;
(2) deprives his employee of employment benefits; or
(3) threatens such a dismissal or deprivation;
because the employee has received or responded to a summons, served as a juror, or attended court for prospective jury service commits interference with jury service, a Class B misdemeanor.

According to the charging instrument, the former employee told his employer that he may be on jury duty for 2-3 weeks.  The following day the juror's employer fired the employee claiming that they were “eliminating his employment due to volume.”

To read more about the case go here.

British Juror Takes Contempt Conviction to European Court of Human Rights

Dr. Theodora Dallas, a former juror from England, who was convicted of contempt in 2011 and sentenced to six months incarceration, is now taking her case to the European Court of Human Rights.  Previously, Dallas unsuccessfully appealed to the Supreme Court of the United Kingdom, which refused to hear her case finding that it did not raise "an arguable point of law."  As a result, Dallas has already served three months of her six-month sentence.

In her appeal to the European Court of Human Rights, Dallas, a non-native English speaker, argues that since she was not provided proper jury instructions her conviction for contempt should be overturned.  Her conviction arose after the court discovered that Dallas used the internet to define the term grievous and to look up the defendant's record.

In sentencing Dallas to six months confinement, the trial judge determined that misuse of the internet by a juror is always a most serious irregularity, and an effective custodial sentence is virtually inevitable.  The objective of such a sentence is to ensure that the integrity of the process of trial by jury is sustained.  

The judge in this case also declared a mistrial or "abandoned trial" because of Dallas' actions.

To read more about this case go here.

Monday, December 9, 2013

Selective Juror Investigations

As most readers of this blog are aware, today's attorneys are increasingly turning to the Internet to investigate jurors.  Most, but not all, judges are okay with attorneys conducting such investigations.  However, attorneys can run into problems when they are selective in their investigations.  The article below raises the possibility that a few prosecutors in D.C. are more inclined to investigate the backgrounds of prospective jurors who are black.

Washington Post: Questions Arise Over Criminal Background Searches of Jurors in D.C. Superior Court
District prosecutors ran criminal background checks on several potential jurors in a high-profile gang case, raising serious concerns from a judge who questioned why most people they selected were African American...to continue reading go here.

To learn more about juror investigations go here.

Friday, December 6, 2013

Arias Judge Denies Defense Counsel Access to the Twitter Accounts of Prospective Sentencing Jurors

This week the judge overseeing the Jodi Arias murder trial rejected a request by the Arias defense team to gain access to the Twitter accounts of prospective jurors. The judge's order can be found below. According to defense counsel, they need access to the Twitter accounts of any future jurors to ensure that any decision made by the jury is based on evidence presented at trial not information gleaned from others via Twitter. The defense attorneys also noted that in Arias' earlier trial some jurors failed to strictly abide by the courts admonitions against using social media. Here is the initial motion filed by the Arias defense team.

As some may recall, Arias was previously convicted in May of killing her on and off again boyfriend, Travis Alexander. At the time of her conviction, the jurors could not decide whether or not Arias deserved the death penalty. Thus, although she was convicted, she has not been completely sentenced. Her case is in a state flux as prosecutors must decide if they want to seat a new jury in order to pursue the death penalty. If a new jury is not empanelled, Arias will be sentenced to life.

The defense's motion was definitely a long shot. However, it does demonstrate the growing influence of social media on the criminal justice system and jurors in particular. At some point in the near future, courts are going to have to get serious about how they address jurors and improper online communications and research. For more information about that topic go here.
The Court has considered the Defendant's Motion to Compel Juror Twitter Accounts filed August 21, 2013, the Objection to Defendant's Motion to Compel Juror Twitter Accounts filed August 30, 2013 and the oral argument conducted on November 26, 2013. In the motion, Defendant Arias requests the Court order all jurors seated in her case to disclose their Twitter accounts and/or Twitter handles. Defendant claims the disclosure of this information will assist in investigating whether the jurors have been subjected to any extraneous influences during jury service. Defendant argues that improper communication between jurors and third parties can invalidate a verdict, citing Mattox v. United States, 146 U.S. 140, 150, 13 S. Ct. 50, 53 (1982). Thus, Defendant asserts obtaining information from the jurors regarding their Twitter accounts will allow the parties to monitor the jurors to assure there is no violation of the Court's admonition. To protect their privacy rights, Defendant suggests the Court seal the jurors' Twitter account information.
The Court can find no legal authority supporting an order that all jurors provide their Twitter account information to the Court. Access to social media and a particular juror's frequent use of social media may be appropriate topics for jury selection. The parties may include questions in the jury questionnaire regarding use of social media and whether a juror is willing to cease or limit accessing social media during the trial. This information may assist the parties in discovering concerns about prospective jurors.
There is no lawful basis for the Court or parties to investigate or monitor jurors absent a credible allegation that juror misconduct has occurred. If a juror is inclined to violate the Court's admonition (provided orally during court proceedings and in writing in the Preliminary Jury Instructions given to each juror), there are numerous ways such a violation could occur. Requiring jurors to provide Twitter account information would not limit or reduce in any meaningful way the possibility that a juror will be exposed to extraneous information about the case or assist in preventing or proving a violation of the Court's admonition. Further, informing jurors they are required to provide information about their social media accounts may result in a prospective juror refusing to participate as a juror on the case because he or she deem such a requirement to be a violation of his or her privacy rights.
The Court will not presume juror misconduct will occur. The Court will not require all jurors to provide their social media account information to the Court.
IT IS ORDERED denying the Defendant's Motion to Compel Juror Twitter Accounts.

Tuesday, December 3, 2013

When Anti-CSI Jury Instructions Go Too Far

Last week, the highest state court in Maryland granted Emanuel Ford Robinson a new trial because the judge hearing his case gave the following instructions to the defendant's jury:
During this trial, you've heard testimony of witnesses and may
hear argument of counsel that the State did not utilize a specific
investigative technique or scientific tests. You may consider these facts
in deciding whether the State has met its burden of proof. You should
consider all of the evidence or lack of evidence in deciding whether the
defendant is guilty. However, I instruct you that there is no legal
requirement that the State utilize any specific investigative technique
or scientific test to prove its case. Your responsibility as jurors is to
determine whether the State has proven based upon the evidence, the
defendant's guilt beyond a reasonable doubt.
These instructions were apparently in response to the Opening Statement given by the defendant's attorney, which, among other things, included the following:
There will not be any fingerprints from any door, any piece of paper or
tape, or whatever they're saying, on any weatherstripping, on the doors,
no fingerprints of his. There won't be [the defendant's] DNA on
anything, not on any screwdriver, not on any weatherstripping, not on
any piece of tape, not on anything. Quite frankly, there's just not,
there's absolutely no evidence beyond a reasonable doubt that Mr.
Robinson committed these crimes.
In overturning the defendant's burglary conviction, the Maryland high court determined that the judge's instructions constituted improper burden shifting. According to the court,
in light of "the currently inconclusive state of the scholarly legal and/or scientific communities' research,
taken as a whole, regarding whether such a phenomenon as the 'CSI effect' exists,"
the instruction should not be given preemptively and should be "confined to situations
where it responds to correction of a preexisting overreaching by the defense, i.e., a curative instruction."
This case offers some very interesting takeaways. First, it provides an excellent overview of the CSI effect. For those interested in a history of the CSI effect or a quick review of the literature and law on the topic, this case is a good read. Second, this case demonstrates that prosecutors and judges should not be so quick to believe that the CSI effect exists. As illustrated by this case, the fear of the CSI effect maybe worse than the reality. As pointed out by the high court,
The academic and scientific community has
yet to conclude that a "CSI effect" exists and, thus, supports our skeptical view that the "CSI
effect" exists.
For previous posts about the CSI effect as it relates to jurors go here.

Monday, December 2, 2013

Harris County Grand Juries

Last week Harris County grand juries were in the media spotlight.  Below are two hyperlinks to newspaper articles that examined some questionable grand jury practices in Harris County, Texas where Houston is located. In my opinion, the two most disturbing aspects of the Harris County grand jury process are the use of the (1) shooting simulator; and (2) the selection process.

Shooting Simulator: During grand jury orientation, grand jurors are provided a virtual simulation experience in which they play the role of a police officer confronting a suspect.  Many believe that this firearms simulator training has led to grand juries clearing the Harris County Police Department in 288 consecutive shootings.

Selection Process: The state of Texas permits two methods of selecting grand juries.  The first relies on random selection.  The second uses commissioners.  Under the second method, which is commonly used in Harris County, the local district judge appoints between three to five commissioners who pick certain people from the community to become potential grand jurors.  The judge then questions these prospective grand jurors and selects 12 with two alternates.  Not surprisingly, this second method does little to ensure that grand juries will be diversified or representative of the community.

To read more about Harris County grand juries go here and here.