Possible Mistrial Motion by Defense Concerning Juror Misconduct in Michigan Governor Kidnapping Conspiracy Trial

Defense counsel in the Whitmer kidnapping federal trial has filed an allegation that one of the sitting jurors told coworkers she wanted to serve on the jury, had prejudged the case and wanted a particular result.  The lawyer's filing was made after the second day of trial and was briefly available but since sealed.   The trial judge has indicated that an in-chambers (in camera) questioning of the juror will occur without defendants or attorneys present.  Their request to be present was denied.  I will update this post as matters progress.  However, it is a red flag as the in-chambers questioning could be found by an appellate court to be a crucial stage of the proceedings at which the defendant must be allowed to be present.  Stay tuned.

Observations About In-court Jury Trials and Remote Hearings During Covid

 Once jury trials resumed in 2021 there were many challenges facing the courts.  Some jurors were reluctant or even refused to come to the courthouse for a trial once summoned.  Despite state court mandates on 2 occasions I had jurors show up on the first day of trial and refuse to wear a mask.  During proceedings it is very important to keep a good record, so the court reporter must be able to clearly hear attorneys, witnesses, jurors and the judge.  Attorneys had to be reminded frequently to briefly drop their masks while speaking.  This was simply an inconvenience.  A more serious issue which I faced was a criminal defendant allegedly testing positive for Covid the night before day one of a long-delayed trial.  Whether it was true or not we could not risk infecting court staff, jurors, bailiffs, and attorneys if the defendant was required to appear for trial.  Many trials throughout MN were delayed because of participants testing positive.  

Some trials were conducted in a hybrid manner with some witnesses appear remotely via Zoom, much as you may have observed in the January 6 Congressional hearings.  This raised issues such as:

1.  Is the witness reading from a script?

2.  Are there others off-camera prompting the witness?  During other hearings I had to ask the party on screen to confirm whether anyone else was in the room.  Sometimes there was a family member or friend whispering "Tell the judge..."

3.  During all kinds of remote hearings, echnology issues such as poor bandwidth or equipment caused us to lose the person on Zoom, or we could not hear them or they could not hear us.

4.  As has been the subject of tv ads, people showed up for Zoom hearings inappropriately dressed, eating or drinking, or smoking, or in a noisy room or outside on their deck.  The trappings of the courtroom and its sense of serious business taking place was largely lost.  

All of the above and other issues with remote hearings caused incredible stress on the participants, lawyers, judges and court staff.  Having retired I have no idea if these issues have abated, but I hope so.  Respect for our system of justice is integral to our democracy, which is under serious attack everywhere.

As Jury Trials Resumed as Covid Abated, Jury Misconduct Continued In Familiar Ways in Some High-profile Cases

During the approximately 18 months that many jurisdictions paused from conducting jury trials there was nothing to report here. Since jury trials have begun, there have been several high-profile cases in which juror misconduct has been alleged and even proven. So over the next several weeks I will be catching up. The Ghislaine Maxwell sex trafficking criminal case drew worldwide attention after the apparent suicide of Jeffrey Epstein. In January 2022 shortly after she was convicted, federal prosecutors (exercising their duty to do justice) reported to the presiding judge that they had information that Juror #50 had failed to disclose on his juror questionaire that he had been the victim of child sexual abuse. He had disclosed this to the jury during deliberations and when the topic of the memory of victims was being discussed. Motion for new trial was made by the defense. The court conducted a hearing (Schwartz hering in MN) in which the only inquiry was of Juror #50 and what he had told his fellow jurors and why did he fail to report it on the questionare. He testified that he went through the questions quickly and his failure was inadvertent. It was reported on 4-1-22 that the trial judge denied the motions for mistrial and for new trial. My only comment is that I found voir dire to be the time during trial causing the most anxiety as the judge and lawyers can never anticipate what a prospective juror will say (or fail to disclose) or do during voir dire and prior to selection of the jury. 

 In a Virginia case, Appian Corp. v. Pegasystems, the jury awarded Plaintiff a $2 billion verdict in the corporate secrets case. The defense filed a motion for the court to investigate alleged juror misconduct of Internet research about the case and a news article over a weekend, the reporting it to the jury. The immense veridct followed thereafter. The trial judge denied the defense motion. I expect an appeal of that denial is likely with all other appealable issues. There have been several cases over the years where trial judges have failed to investigate alleged juror misconduct and that denial was found to be error by the appellate court and the case remanded for investigation of the misconduct.

 On 7-8-22 former Cincinnati City Councilman P.G. Sittenfeld was convicted of bribery and attempted extortion in federal court. His defense attorneys have moved the court for access to cunduct a forensic examination of a juror who allegedly was posting on Facebook about her jury experience during the trial and the night before the verdict. The posts including comments about not liking other seated jurors, including one who talked too much and one who hates people in the occupation of the defendant. Court staff found the Facebook posts during the trial and reported them to the attorneys. On 7-29-22 the court heard the arguments about a forensic examination of the juror's phone, a highly unusual request. Prosecutors argued there is no evidence that the juror was doing anything other than discussing her jury experiences in the trial. I will follow up when the judge makes a decision.

I'm Back

I have reached mandatory retirement age in Minnesota so I have retired. I will be continuing this blog in the near future.

SUDOKU-PLAYING GETS JUROR DISMISSED

The trial of Theranos founder Elizabeth Holmes took a strange turn recently when a juror was discovered playing Sudoku during the trial, allegedly as a means to concentrate on testimony.(CNBC, 10-22-21) Several weeks into the 7-week trial a juror was dismissed when revealing that her religious beliefs prevented her from finding someone guilty who may go to prison.

Juror Found in Contempt and Fined over $11,000

A federal judge in New Jersey has found a juror in contempt of court for violating the judge's instructions not to do research during the trial. The juror shared his online research and results of visits to the crime scene with the jury panel. The juror was fined over $11,000 as this resulted in a mistrial. (Search the Courier Post)

Judges Should Not Disregard Affidavits Alleging Juror Misconduct

As stated previously, judges risk mistrial on appeal (and retrial of the case)if they disregard allegations of juror misconduct. It is important to consider questioning each juror to determine the facts of the alleged misconduct and how each juror was affected.

Due to Pandemic, Jury Trials in Many States Postponed, Mistrials in Other Trials that Were Started

https://minnlawyer.com/2020/11/24/jury-duty-no-thanks-say-many-forcing-trial-delays/

Jurors Behaving Self-Centered: Fed. Judge to Excuse Anti-masking Jurors

A federal judge in Georgia has announced that any jurors in the jury pool who refuse to wear masks will be excused from the jury pool. Sorry, havimng trouble with link. Google: Judge William M Ray III

Zoom Jury Trials Face the Risk of Hacking

Post-Covin19 Courts: Where Do We Go From Here?

In Minnesota committees of judges and court staff are considering how to address the thousands of backlogged cases arising since the courts effectively closed with few exceptions.  Here is a link to a story about a federal judge who paused a jury trial and before resuming it is polling jurors as to their virus concerns should the trial resume:


https://www.law360.com/trials/articles/1265533/jury-in-paused-hacking-trial-to-be-polled-on-virus-concerns?nl_pk=cefc1377-7f29-477c-92de-8ebee6ee3d0f&utm_source=newsletter&utm_medium=email&utm_campaign=trials

Juror Dismissed From Federal Leaker Case

Buried in an article in the Wall Street Journal today about a hung jury in the criminal trial of a former CIA employee, Joshua Schulte, who allegedly stole secrets and gave them to Wikileaks, is this reference:


"...one (juror) was dismissed during deliberations last week for reading news coverage of the case..."


The federal government must be concerned that it is spending millions to prosecute serious (El Chapo and Tsarnaev) criminals and lesser (Schulte) criminals only to be possibly thwarted by juror misconduct.  It's a serious problem in federal and state courts and seems to be continuing unabated.

One Judge's Opinion: Juror Misconduct Threatens Justice

Link:https://libn.com/2020/01/14/prudenti-juror-misconduct-is-a-threat-to-criminal-justice-system/

Followup to Sept 16 post: NY's Highest Court Blasts Internet-Researching Jurors

The highest appellate court of New York has soundly criticized the bad-acting jurors who research on the Internet during trial in violation of the trial judge's admonitions.  Here we go again!  Murder conviction thrown out!  Retrial to great expense of all parties and anguish for witnesses.


https://www.nytimes.com/2019/10/31/nyregion/robert-neulander-wife-murdered.html

Murder Conviction Tossed-Juror had texted 7,000 times during trial

Judges often comment about stuff that happens in the courtroom:  you can't make this stuff up.  Human behavior is limitless in the crazy things people do.  Like the guys peering into Old Faithful at Yellowstone Park despite all the warning signs- it's a federal crime!  So no one should be surprised that a juror texts 7,000 times during trial, the defendant is convicted and the conviction is reversed on appeal by the intermediate appellate court in New York.  It is now before NY's highest appellate court.


https://www.newsday.com/news/region-state/robert-neulander-juror-texting-court-of-appeals-1.35890070

What is a "Rogue Juror?"

A "rogue juror" applies their own specialized knowledge and experience when rendering a verdict rather than analyzing the evidence.  Here is the appellate decision:


http://www.courts.ca.gov/opinions/documents/B285482.PDF

Self-described "Stupid Old Fool" Juror Gets 8 Months in Jail for Internet Research

One would think the message has gotten around to the public that ignoring a judge's admonitions about jurors discussing trial service on social media or doing Internet research can result in fines and/or jail time. But, oh no, here's another:


https://www.dailymail.co.uk/news/article-6891529/Stupid-old-fool-65-jailed-doing-background-research-complex-criminal-trial.html

Defense Attorneys for El Chapo File Motion for Retrial

The lengthy and extremely expensive trial of El Chapo may have to be retried.  Defense attorneys have filed a motion for a new trial due to juror misconduct during the trial.
Link:https://www.rollingstone.com/culture/culture-news/el-chapo-retrial-jury-misconduct-investigation-813433/

El Chapo Trial May Involve Juror Misconduct

In perhaps the most important federal criminal prosecution in years, juror misconduct may have occurred:


http://e.startribune.com/Olive/ODN/StarTribune/shared/ShowArticle.aspx?doc=MST%2F2019%2F02%2F24&entity=Ar01502&sk=A293F31E&mode=text

A Case of Sheriff Behaving Badly: Snooping at Defense Counsel Notes and Jurors During Trial Results in Dismissal of Charges

This is quite astonishing:



https://www.seattletimes.com/seattle-news/san-juan-sheriffs-use-of-courtroom-camera-to-view-jurors-notebook-lawyers-notes-sparks-outrage-and-dismissal-of-criminal-case/

Prospective Juror in Criminal Case Causes Mistrial

Judge acknowledges that prospective jurors should be instructed not to do Internet research once jury selection starts. Here it caused a mistrial..
Link
https://www.wacotrib.com/news/courts_and_trials/mclennan-county-justice-delayed-in-two-trials/article_003b49e4-93af-5fb9-a6af-389d5852db33.html

After Trial, Juror Sends Victim "Virtual Hugs"

The MN Court of Appeals upheld the trial judge's denial of a Schwartz (post-trial juror misconduct)hearing after it came to light that a juror, after the trial, apparently being enamored with the attractive victim of the crime, sent the victim a text message that he was sending her "virtual hugs".  The juror allegedly got the phone number of the victim off a piece of evidence.  In a word: creepy.

Thorough Inquiry of Jurors Often Nececssary If Outside Influences May Have Affected Deliberations

Here is a Minnesota case just issued dealing with an issue I have addressed before in this space:
http://mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Standard%20opinions/OPa171237-082018.pdf

100 Years Ago: The Jurors Drank the Evidence

http://www.spokesman.com/stories/2018/may/22/100-years-ago-in-spokane-male-jurors-drink-evidenc/

ABA Article on Lawyers Searching Potential Jurors on Linked-In

Generally it is not unethical for lawyers to search for public information on jurors through Linked-In, but searching for private information or attempting to connect with a juror is unethical.  Lawyers should check their state's rules in this area as states differ on their rules.


https://abaforlawstudents.com/2018/05/01/is-it-ethical-for-lawyers-to-use-linkedin-to-research-jurors/

New Trial Granted Due to Racially-Biased Comments by One Juror in Minnesota Federal Trial

http://m.startribune.com/north-minneapolis-man-granted-new-trial-after-evidence-federal-juror-made-racial-remarks/481007841/?section=%2F

Deja Vu: Facebooking Jurors Cause a Reversal of a Murder Conviction

This time it's in Iowa.  A murder conviction was reversed by the appellate court due to prejudice to the defendant from contacts on Facebook some of the jurors had both before and during deliberations. Pre-deliberations one juror discovered that one of the defendant's relatives was her Facebook friend.  During deliberations a juror shared that on Facebook there were posts about rumors that there would be a riot or violence if the defendant was not found guilty of something.
LINK: https://cdn.radioiowa.com/wp-content/uploads/2018/04/Christensen-opinion-PDF.pdf

British Juror Gets Suspended Jail Sentence for Internet Research

Once again, a juror is sentenced to jail, though a suspended sentence, for violating the judge's instructions by doing Internet research.
Link:
http://www.guardian-series.co.uk/news/16164599.Juror_avoids_jail_after_internet_research_of_case_forces_retrial/

Jurors Sometimes Violate Social Media Admonitions Because Judges' Instructions Confuse Them

https://www.economist.com/news/books-and-arts/21740393-legalese-used-their-instructions-can-be-baffling-it-neednt-be-too-often-juries?fsrc=scn/tw/te/bl/ed/toooftenjuriescomprise12confusedmenandwomenjohnson

Juror Playing Games on Phone During Deliberations Held in Contempt

Just like paying attention to the professor in class (and obeying the judge's instructions)  failing to engage in jury deliberations by playing games on one's phone can result in contempt of court.
http://www.bbc.com/news/uk-england-cumbria-43490590