Tuesday, January 28, 2014

Juror Receives Significant Jail Time for Misconduct

A Florida judge today held juror Dennis DeMartin in contempt of court and sentenced him to jail for at least 120 days. The contempt finding stemmed from DeMartin's misconduct during the trial of polo mogul John Goodman. Because of DeMartin's actions, Goodman's conviction and 16-year prison sentence for DUI manslaughter was set aside. Goodman will now have to be retried.

DeMartin's transgressions were twofold. First, he failed to tell the court that his ex-wife, then wife, was convicted of DUI. In addition, DeMartin conducted his own experiment with alcohol to determine how drinking might impair one's abilities. The court discovered DeMartin's misconduct because he self-published three books in which he detailed his time as a juror in the Goodman trial. According to the trial judge who sentenced DeMartin,

    If I found Mr. DeMartin a benign Mr. Magoo who was unaware of the destruction he left in his wake, then I would find differently. I don’t think that’s the case.

Palm Beach Post: Juror Dennis DeMartin sentenced to 120 days in custody

Monday, January 27, 2014

Juror Nullification: Power vs. Right

The Chicago Tribune has an interesting editorial on jury nullification.  I like the article because it discusses the difference between the jury's power to nullify and the jury's right to nullify.  As of late, some are trying to convert this power into a right (go here for an example).

Chicago Tribune: The Dangers of Jury Nullification

Tuesday, January 21, 2014

9th Circuit Extends Batson to Sexual Orientation

Today, in Smithkline Beecham Corporation v. Abbott Laboratories, a three judge panel in the 9th Circuit made it clear that lawyers in their jurisdiction may no longer strike jurors because of their sexual orientation.  Up to this point, the Supreme Court has prohibited attorneys from exercising peremptory challenges to remove jurors because of their race (Batson v. Kentucky) and gender (J.E.B. v. Alabama).  Now for the first time, a federal appellate court has extended this prohibition to cover sexual orientation.  Some states such as California have passed legislation extending Batson to sexual orientation, but this is the first federal court to do so.

According to Judge Stephen Reinhardt who wrote the unanimous opinion for the three judge panel:

Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.

This dispute between Smithkline Beecham Corporation and Abbott Laboratories stems from a licensing disagreement and the pricing of HIV medications.  Smithkline was suing Abbott Laboratories for allegedly overpricing its HIV drugs.  During voir dire, attorneys for Abbott Laboratories allegedly struck a gay man because of his sexual orientation.  The parties were aware of the juror's sexual orientation because the juror self-identified.

It remains to be seen if this decision will be upheld.  The losing party may ask for an en banc hearing and or appeal the case to the Supreme Court.  Some would argue that extending Batson to cover sexual orientation will create more problems than it would solve.  First, how will this decision be implemented?  Unlike race or gender which most jurors identify on the juror form, how will attorneys know someone's sexual orientation unless they directly ask that person?  Second, is sexual orientation similar to race and gender?  While there is an argument to be made with respect to marriage equality, the same cannot be said for jury service.  There is no history of discrimination with respect to gays and lesbians serving as jurors, which raises the final point.  If anything, this decision is more of a symbolic victory as the question of whether jurors are struck because of their orientation rarely comes up in the day to day practice of selecting a jury.

Wednesday, January 15, 2014

Juror Who Can't View Images of Child Pornography Leads to New Trial for Defendant

In this case, the judge refused to Challenge for Cause a prospective juror who had a very difficult time viewing photos of child pornography.  On appeal, the 6th Circuit Court of Appeals overturned the defendant's conviction because the trial court abused its discretion in not removing this juror.  This case is interesting only because you wonder, after reading the colloquy, why the court would keep this juror.  Here is a portion of the juror's colloquy.

MR. BETRAS: So the question becomes, even though the images are – they’re hard to look at, like I said in opening, but can you be fair and impartial? Or do you think you could no longer fulfill your job as being a fair and impartial juror in this case?
JUROR 29: I won’t be able to view the pictures or the video.
THE COURT: Excuse me?
JUROR 29: I will not be able to view the pictures or video.
THE COURT: What do you mean you will not be able to? Are you going to close your eyes? You’re saying yes, you’re going to close your eyes?
JUROR 29: Yes. I don’t – I’m sorry. Am I able to speak?
JUROR 29: I don’t – I mean, I understand the context of it. I don’t think the pictures and the video, it is what it is. I know what that is. And I don’t think that’s going to – I guess it comes down to, Your Honor, when right before we left yesterday, you made the comment that do not look anything up on the internet after we leave because that stuff will stay in your brain, you can’t get it out. Your brain has a way of keeping it. And as I was driving home I thought the exact same thing with these pictures and video, and that’s the last thing I want in my head with two little kids at home.
MR. BETRAS: Well, if you’re required as a juror to look at everything that is shown to you as an exhibit and you can’t do it, do you feel you could be a juror in this case?
JUROR 29: No, I do not.
MR. BETRAS: No further questions, Your Honor.
JUROR 29: Sorry.
MR. SULLIVAN: Good morning, [Juror 29].
JUROR 29: Good morning.
MR. SULLIVAN: Okay. You understand the importance of having a jury that’s fair and impartial to the defendant and also to the government?
JUROR 29: Absolutely. That’s why I brought this up.
MR. SULLIVAN: Right. And do you understand that if we had a jury of only people who had no discomfort in viewing images of child pornography, that probably won’t be a jury that would be fair and impartial to the government? Do you understand that?
JUROR 29: I truly understand that.
MR. SULLIVAN: And these images are disturbing. They would be disturbing to any decent person; is that right?
JUROR 29: Correct.
MR. SULLIVAN: And if you were in a homicide case you might have to see some very graphic photographs of a dead body or an autopsy, and that might make you uncomfortable as well; is that fair?
JUROR 29: Fair.
MR. SULLIVAN: So as a sworn juror, if you are – I mean, you have an obligation to weigh all the evidence, as uncomfortable or as distasteful as that might be, can you understand that?
JUROR 29: That’s correct.
MR. SULLIVAN: And realizing that as a percentage of the time of the trial, the time that the jurors are going to be looking at any images or videos is going to be just a small fraction of the totality of the evidence in this case. Can you tell us whether or not you can fulfill your obligation, as uncomfortable as it may be? I’m not saying you have to stare and have it burned in your memory, but just to view the evidence for what it’s worth and then to carry on your obligation so that you can– so that the government and the defendant can both have a fair and impartial jury?
JUROR 29: I wish I could as a citizen, I really do, because I think that is the fair thing to do. It’s just – I don’t want it in my head. My two little kids, I got home last night and I just gave them a hug. And that’s the last thing I want to think about. To me it’s the lowest part of humanity, andthat’s, you know, whoever did it, that’s, you know, a good question. It’s just – I don’t want those images in my head, trying to get those out of my head for the next ten years, you know. I’ve never seen anything like that and I don’t ever intend to. It’s just disturbing. And I thought about it a lot. You know, and that’s why I think we had the small side-bars, as we come up, and I answered that one question on my questionnaire about prejudice to that sort of case. And I think it would be difficult.

The full case (U.S. v. Trent Shepard) is available here.  Finally, the appellate court does point out that had the trial judge done a better job of rehabilitating the juror this case might not have been overturned.

Monday, January 13, 2014

Juror Misconduct Motion in Jeopardy Because of Post-Trial Contact with Jurors

Lawyers for BP engineer Kurt Mix want his conviction overturned because of juror misconduct.  Mix was convicted of obstruction of justice for his role in BP's 2010 oil spill in the Gulf of Mexico.  Mix's lawyers allege that the jurors hearing his case participated in "horse trading" to ensure a split verdict and that at least one juror overheard a conversation in an elevator that made the juror more comfortable with convicting Mix.  To read the defense's motion for a new trial go here.

The trial judge, however, is bothered by the fact that the motion for new trial is based on information that defense attorneys discovered through post-trial juror interviews.  The judge believes that such attorney-juror contact without receiving prior permission from the court is improper.  Thus, the court now wants to hear from both sides as to whether the court should even entertain the defendant's motion for a new trial.  Here is the judge's order directing both sides to brief the issue.  The court will hear oral arguments in February.

This same problem arose less than 6 months ago in the federal trial of Sholom Rubashkin in Iowa

Thursday, January 9, 2014

Trial by Preview: New Law Review Article

Trial by Preview


By Bert Huang

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience — that is, the judge or the jury who will be the finder of fact at trial. Both theory and policy have focused narrowly on previewing the evidence, while barely noticing the complementary effect of previewing the audience. How this interplay might affect leading theories of settlement has yet to be articulated. This Essay begins to fill the gap.

This Essay also presents preliminary empirical findings from a policy experiment in the federal courts, arising from recent reforms in civil procedure. These data suggest that the current use of evidentiary previews may be driving a wedge between trials by jury and trials by judge. Trials are “vanishing” indeed — but not all trials vanish alike. Preview policies may be accelerating a decline in bench trials more than in jury trials. New policy concerns emerge from both the data and the theoretical analysis, and this Essay explores how an awareness of asymmetric preview effects might inform current debates about procedural values and policy design.

Tuesday, January 7, 2014

New Hampshire Representative Introduces Jury Nullification Legislation

New Hampshire Representative Frank Sapareto recently introduced legislation that requires jurors in a criminal trial to be told about nullification.  Specifically, HB1452, mandates that jurors be told the following: 

The concept of jury nullification is well established in this country. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

According to the legislation, failure to inform jurors of this information would result in a mistrial.

For other posts related to juror nullification go here.  This is not the first time that the "Live, Free or Die" state has taken up this issue.