Friday, May 17, 2024

Jurors May Consider Their Own Life Experiences in Analyzing Evidence But Not Share Specialized Knowledge

 Jurors are not robots (or AI) therefore they are not expected to disregard all of their life experiences in analyzing the evidence.  To do so is impossible.  However, if a juror has specialized knowledge or experiences, they may not share them with their fellow jurors during deliberations.  For example, in a medical malpractice case involving an alleged faulty knee operation, a juror cannot share "in my knee surgery the doctor didn't do ...like Dr. Defendant."  Or a plumber on a jury could not share his expertise if the negligence at issue is related to his field of expertise.  (I cannot imagine why the plumber would not be excused from service). A juror that does so commits misconduct.

Check out: To Be "Impartial" Must a Juror Reject His Own Life Experiences? 54 UIC J. Marshal L. Rev. 627 (2021) at p. 644

Experts in the Jury Room, 69 Stan. L. Rev. 911 (2017) 

In re Malone, 911 P.2d 486-487 (Cal. 1996) (psychologist juror committed misconduct in critiquing polygraph study admitted in evidence) 

Thursday, May 16, 2024

Using Geofence to Discover Juror Social Media Activity Requires Warrant

 I discovered that a company selling software for social media searches published in a blog that an inquiring law enforcement should use software and a geofence to discover juror social media activity while at the courthouse during a trial.  This is an interesting suggestion but fails to mention one important requirement: LAW ENFORCEMENT MUST ESTABLISH PROBABLE CAUSE FOR A CRIME WITHIN THE GEOFENCE AND OBTAIN A SEARCH WARRANT FOR PHONE RECORDS.  

For example, if a burglary occurs at a business, law enforcement can seek a warrant for cellphone activity within the close vicinity of the store during the possible hours of the burglary.  Then they can obtain the cellphone records from the phone carrier.  But there must be probable cause that a crime was committed within the geofence and the scope of the warrant must be limited in time and location.

Friday, May 3, 2024

Jurors Must Not Deliberate Until So Instructed By Judge

 Standard instructions to the jury prior to the hearing of evidence include that they must not discuss the case among themselves until after final instructions and submission of the case to them.  The Georgia Court of Appeals in McCloud v. Georgia, decided 5-1-24, rendered a decision in a case where a bailiff noticed juror notes on a whiteboard in the jury room.  The bailiff told the jurors they must not discuss the case until the judge told them to deliberate.  However, the bailiff also erased the whiteboard but should have at least taken a photo of the notes and informed the judge so the judge could deal with the issue.  The defendant was convicted.  On appeal he alleged ineffective assistance of counsel in that his attorney did not seek a mistrial once the "deliberations" issue was revealed.  The appellate court found this was not a basis for ineffective assistance of counsel as trial counsel felt the trial was going well and that a second trial would not likely have a better result, expressly waived any objection and only sought a curative instruction.  Perhaps defense counsel would have addressed the issue differently had counsel seen the notes, but that would have revealed how some of the jurors were thinking (which is forbidden).


Source: National Center for State Courts

Friday, April 26, 2024

Not Every Failure to Disclose by Juror is Grounds for Mistrial

 I have discussed in other posts the need for the jury questionnaire to use laymen's English, not legalese.  Likewise, questions must be clear.  This was the case in Davis v. State of Arkansas, 2024 Ark. 49, where after a guilty verdict, defense counsel moved for a new trial on several bases, one being that a juror failed to disclose during void dire that her sister worked for defense counsel.  The argument was that if disclosed, that juror would have been excused for cause and another juror seated, therefore the defendant was denied the right to a fair trial.  The trial court's denial of the new trial motion was upheld by the Supreme Court of Arkansas, reasoning that the juror was never asked if any member of her family was associated with either of the attorneys.  The juror in question had no duty to voluntarily disclose this fact as she was never asked that question.

Several times during void dire I asked the panel whether any of them (22) had ever been sued.  No one raised their hands.  Then I asked if any had been divorced.  About half the panel raised their hands.  They didn't think a divorce case was a lawsuit.  Likewise, often they didn't't think a DWI charge was a criminal offense.


Jurors in High-Profile Cases Face Unique Challenges

 An excellent article in the Washington Post on 4-18-24 was written by columnist Philip Bump about his own experience as a juror in a high-profile case in a NY courtroom.  He served over several months, at $40 a day, sitting in the case of financial crimes against persons associated with socialite Brooke Astor,  The case was followed intensely in the media.  One juror was discharged for reading the NY Post in the jury room.  Mr. Bump's experiences in 2009 were likely similar to what the current Trump jurors are going through, yet social media coverage was certainly substantially less 15 years ago.  

Challenges include avoiding, even unintentionally, being exposed to news coverage about the trial, and social media inquiries by friends and family.  The certain financial pressures of those not earning a wage while on jury duty cause undo stress.  And probably most obvious, fear that one's identity will be revealed, leading to threats and coercion by the defendant's supporters.

We owe much gratitude to these jurors serving the administration of justice under difficult circumstances.  

Sunday, April 21, 2024

Are Anonymous Jurors Really Anonymous?

 In high profile criminal trials judges will often order that the identities of the jurors shall remain anonymous.  If a party or attorney discloses their identity it can lead to coercion or threats against the juror.  But do they remain anonymous?  If it is disclosed that Juror #10 is a female living in a certain city who works in an elementary school as a paraprofessional, it seems likely her friends and acquaintances, who likely know she is in the jury pool, will conclude she was seated as a juror.  Those friends can then identify the juror on social media, leading to widespread disclosure of their identity.  One juror in the current trial in NY federal court was excused when she reported feeling intimidated because her identity had been revealed on social media.   Protecting parties, witnesses, lawyers, jurors and court personnel from threats or coercion is a serious issue that needs to be addressed in the judiciary and in the media.  In the days ahead we must watch to see if the identities of the sitting jurors are protected. 

The first anonymous jury was a federal trial of drug kingpin LeRoy Barnes in New York in 1977, according to The NY Times.

The judge in the trial in NY allowed the attorneys to know the names and addresses of the jurors, but those names and addresses re shielded from the press and public.  The judge cited "a likelihood of bribery, jury tampering, or of physical injury or harassment of juror(s)."  Of what use are the names and addresses of jurors to the attorneys?  They most certainly have searched each juror's social media presence, history in the courts, and education and employment history.  This basically allows in-depth "cross-examination" of each juror during selection.  An already-seated juror in the NY trial was excused after having failed during examination to reveal his arrest in the 1990's and his wife's investigation for corruption.

In Court there is simply THE TRUTH, not each person's opinion of the truth.

Friday, April 12, 2024

Another "Sleeping Juror" Case

💤😴 A few days ago in western Wisconsin a criminal trial was ongoing against a defendant who allegedly stabbed to death another at the Apple River recreational area.  The State sought to have a juror discharged for being inattentive during the trial and allegedly sleeping.  In a lengthy trial it is concerning to the court to run short of alternates in case another juror is ill or discharged for cause, leading to a mistrial.

The arguments, testimony of a witness to the alleged sleeping, and judge's comments are on YouTube with a transcript.  (Search: Apple River trial sleeping juror). The Motion to discharge the juror was denied.   The defendant was convicted of reckless homicide.

See prior posts here dated 3-1-12 and 12-8-11.

Thursday, March 28, 2024

British Solicitor Suspended From Practice of Law for Misconduct as Juror

 Even lawyers serving as jurors can suffer serious consequences for Internet research in violation of the judge's orders.  In March 2021 a 25-year veteran British solicitor was serving as a juror in a civil case.  She researched real estate records relevant to the case, disclosed her findings to the jury, caused a mistrial, and delayed a retrial for 8 months at substantial expense to the parties and lawyers.  The solicitor spent 4 months in jail, literally serving as a jailhouse lawyer assisting her fellow inmates.  In addition, she failed to maintain the public confidence in the solicitor profession.  (Solictors assist trial lawyers but do not themselves appear as a barrister, that is, trial counsel.).   In January 2024 she was suspended from practicing law for 8 years and ordered to pay 5,000 pounds in costs. 

Wednesday, March 27, 2024

The Financial Burden of Jury Duty

 One aspect of jury duty of which I was always concerned was the financial strain of a lengthy trial many citizens..  Most of the trials I presided over in state court lasted no longer than 10 court-days.  After being appointed to the bench I quickly stopped suggesting to the potential jurors the numbers of days the trial would likely require.  Trials are often delayed by illness of participants, witness issues, technology issues, etc.  Where I worked a significant portion of the jury pool were self-employed people in the trades, farmers, students with part-time jobs, and day care providers.  They could not afford to lose even a week of income.

A lawyer in the notorious Young Thug trial last week opined that the trial may go into 2027.  I recall several decades ago when the tobacco company trials in Saint Paul, Minnesota, federal court went for many months, several of the jurors had to file bankruptcy, having been out of work during the course of the trial.  The court-paid jury fee is pathetic, often $20-50 a day.  Many citizens who are self-employed or will not be paid by their employer genuinely are afraid of financial ruin if not excused from jury duty.

Just Google 'avoiding jury duty" and you may be surprised at what you will see. 


Tuesday, March 5, 2024

The Juror Who Found Herself Guilty

 This is the title of an amazing article by Michael Hall in the February 2024 issue of TEXAS MONTHLY about a jury in December 1990 that wrongfully convicted a Texas man of raping an 8 year old girl and the last holdout juror who also convicted but decades later decided to do something about it.  Carlos Jaile lost over 3 decades of freedom because law enforcement, the jury and the judicial system failed him.  Yet one small woman, after decades of guilty feeling, changed his life. It is a story not unlike the movie "Twelve Angry Men" but with a different verdict and ending.  

Saturday, March 2, 2024

Juror Sentenced to Maximum 179 Days in Jail and $500 fine

 To update Dec 15, 2023, post, the juror arrested for misconduct in the Okafor resentencing trial was herself sentenced to the maximum allowable punishment in January:  179 days in jail and a $500 fine. Her misconduct resulted in a mistrial, the cost of which the judge estimated to be $200,000 but he could not assess the cost to her.

Friday, February 23, 2024

Another Juror Dismissed in Young Thug Trial

 Another juror has been dismissed from the Young Thug trial as she is moving out of Fulton County, Ga., where the case is being tried.  The judge has said the trial is expected to go into 2025 and if the juror no longer resides in Fulton County when a verdict is rendered, the verdict could be invalid.  Neither side in the case objected.  Just another in a long history of delays, jury selection having taken nearly a year.  In addition, counsel for one of the defendants has been indicted for gang activity arising separate from this case and will likely withdraw to deal with her own case.

Thursday, February 22, 2024

Judge Finds Defense Counsel Failed to Prove Juror Misconduct

 January 3, 2024:  A Florida judge found that defense counsel failed to prove juror misconduct in a trial in which a jury awarded the Kowalski family $211 million against Johns Hopkins All Childrens Hospital for false imprionment and other counts involving their daughter, Maya, then 9, now 17.; and the suicide of her mother over the distress of her daughter's care.   It was alleged that during the trial the jury foreman's wife posted about the trial on social media and attended court one day and that they both posted comments after the trial.  Juror #1 denied talking to his wife about the trial while it was taking place and denied doing any research during the trial, including about hospital physicians.  Other proposed questions by defense counsel were not allowed.  Defense's new trial motion was denied. 



Friday, February 9, 2024

"The Uncharted Wilds of the Internet" Cited by DA in Young Thug Trial

 The prosecutor in the Young Thugs trial dropped their motion to ban cameras in the courtroom for the safety of witnesses.  However, they will seek anonymity on a case-by-case basis as each witness is called.  After one witness' phone number was posted in "the uncharted wilds of the internet," said the prosecutor, the witness received threats.  So what will happen if and when the former president goes on trial and cameras in the courtroom and anonymity of witnesses become issues?

Wednesday, January 10, 2024

More.Drama at Young Thug Trial: Zooming Participant Shouts

 Today, January 10, a Zooming participant in the trial shouted "Free Thug Mistrial" when a break was beginning.  One can only wonder what else can happen after this 15th day of the trial.  No other details about any investigation.  My experience with Zoom hearings over 1-1/2 years is that it may be difficult to determine the identity of the miscreant.  Generally, a defendant cannot by their own behavior cause a mistrial.

Friday, December 15, 2023

Juror Jailed and Held in Contempt of Court

 Orange County FL:  In October in the Okafor death penalty resentencing phase a juror admitted she spoke to a friend who knows the victim days before deliberations began.  She was sent to jail.  The defense motion for a mistrial was granted.  The offending juror may be assessed the cost of the 3-week trial that went for naught.  The family of the victim will have to live through the trauma of the sentencing phase for what appears to be a third time.  

Monday, December 11, 2023

Young Thug Trial Drama Continues

 Friday December 8 the trial was delayed as a juror arrived 90 minutes late.  The judge reiterated that the jurors should remain off social media, their identities having been revealed on social media and the trial apparently being live streamed by someone.  I am wondering if the judge will call in an expert to locate the culprit in the courtroom if live streaming continues.  

Monday update: Co-defendant Shannon Stillwell was stabbed while in jail so the trial is delayed at least one day.

Tuesday update:  Judge has recessed the trial until January 2.  Stillwell recovering.

Friday, December 8, 2023

Drama and Security Issues Continue in Young Thug Trial.

On Wednesday a juror told the judge that during a recess she saw a LIVE STREAM of herself on social media.  The judge suggested to the jury that they remain off social media for the balance of the trial.  That someone is recording and live streaming the trial raises serious issues of juror safety.  One can only surmise what will happen in the balance of the trials involving DT and the 2020 election conspirators.



Monday, December 4, 2023

Judge Informed That Faces of Jurors in Young Thug Trial have Been Posted on Internet

 Per a posting on Instagram (reliability unconfirmed) photos of the jurors have been posted on the Internet, however the judge did not want to disclose it to them as it may unnecessarily alarm them.  One juror was replaced today as she remained hospitalized from over the weekend.  Week 2 of the trial continued today.

Again it raises the importance of protecting jurors and their identities in upcoming trials of national significance.

Monday, November 27, 2023

Young Thug RICO Trial in GA begins

 When I mentioned jury selection had hit 4 month mark it was July 17.  Here we are 4+ months later (total actually nearly 10 months per CNN) and the trial just began today with opening statements.  Imagine how long it may take to pick a jury in the criminal cases involving "He whose name need not be mentioned"?

Monday, November 13, 2023

Safety of Grand Jurors in Fulton County GA at Risk as Identities Revealed

 CNN reported in August 2023 that the names, addresses, and photos of grand jurors in the Fulton County GA indictment of President Trump and 18 others have been reported on the dark web, including calls for violence against them.  This raises once again the lengths to which court security may have to go in Georgia and elsewhere to protect the identities and safety of jurors and their families in trials involving these defendants, though several in GA have already plead guilty.  Sequestration throughout the trial would be not only extremely expensive but basically be detention of the jurors in a hotel or resort.  Presumably this would be announced before jury selection, likely leading to some jurors failing to appear for service, requesting they be excused or simply telling the court that they cannot be a fair juror.  Yet the fate of this nation hangs in the balance if those who seek to undermine the electoral process are not held accountable.

Thursday, October 26, 2023

Graduated punishment for contempt of court

 If a juror, lawyer, witness, or spectator violates a judge's order or interferes with the trial in the immediate view of the judge, the court can find direct contempt and order punishment, ie. sentencing.  Generally, for a first offense the punishment is a small fine.  If the behavior continues, increasingly harsh punishment (graduated)may be ordered, such as larger and larger fines, finally resulting in a jail sentence.  If a party is obstructionist, for example, shouting from the counsel table, eventually they may be removed from the courtroom.  A criminal defendant could be required to observe the proceedings over closed circuit tv from another room, out of the view or hearing of the jury.  I had a trial in which this occurred and my decision was affirmed by the appellate court because I had warned the defendant about such behavior prior to starting the trial.

Friday, October 13, 2023

Update to Judicial Discipline of Mid-trial Texting by Judge

 To update my July 27 post, an Oklahoma judge is facing a judicial discipline petition following an investigation of her texting and using social media during a murder trial in June.  She can be viewed on video scrolling thru social media on her phone.  Judge Traci Soderstrom (sworn in January 2023) is accused of sending over 500 text messages to her bailiff during the trial, including some critical of the prosecutor, praising defense counsel and commenting on evidence.  She is currently suspended with pay pending a disciplinary hearing.  

Friday, September 29, 2023

Will Cameras in the Courtroom in Trials of Trump and Co-conspirators Raise Risk of Juror Misconduct?

 Renee Loth writes in The Boston Globe that the trials of Donald Trump should be televised as it will lead to greater acceptance by the public of the verdicts.  I will not express any opinion on that assertion but instead recount what has happened in past trials involving cameras.  In the Derrick Chauvin trials in MN there were no serious incidents of juror misconduct during the trial, though it was alleged that the faces of some jurors could be seen reflected off the plexiglass barriers in the courtroom.  You will find in past posts here other serious incidents, including a cameraman who accidentally swung the camera exposing the faces of the jurors, the identities of which were to be secret.  If you are of a particular vintage you will recall the media circus that was the OJ Simpson trial. 

Will prospective jurors want to be on the jury to reap the perceived economic benefits of their notoriety?

Book deals.  Appearances on the talk shows.  Depending on the verdicts, being the hero or darling of the political groups supporting the verdicts, perhaps ignoring the need to go into hiding.

Here is a link to an excellent article by Prof Thaddeus Hoffmeister, author of several books and many articles on juries, with comments on the impact of social media:

https://kansasreflector.com/2023/09/09/do-unbiased-jurors-exist-to-serve-at-trumps-trials-in-the-age-of-social-media/ 

Monday, July 17, 2023

Georgia Trial Jury Selection Hits Four Month Mark As AWOL Juror Hears Consequence

 As an update to May 15 post, the RICO trial of gang members continues to have issues with potential jurors behaving badly.  Jury selection has gone on for 4 months, possibly a record for Georgia.  Most recently a juror who failed to show for jury duty and went to work instead was ordered to observe the trial for 5 days WHENEVER it starts, which could be a while.  This was in lieu of 20 days in jail and a $1,000 fine.  Jury selection is expected to continue through the summer.  YouTube has videos of the interaction between the judge and the juror.

Friday, June 30, 2023

Sequester Jurors During Trial of Former President?

 Referring you to my post dated 12-17-22, in light of alleged threats against the federal prosecutor and his family, should jurors in any trials of the former President be sequestered during the entire trial, not just during deliberations?  Even disregarding the exorbitant cost, logistical issues, and privacy issues, would any jurors be willing to be cut off from family, media, social media, employment, and recreation for weeks on end and serve on such a jury?  Or, would the court even want those so willing to serve given the likelihood of their desire for their "15 minutes of fame": post-verdict media tour, etc?  Or a desire to sway their fellow jurors toward a preconceived verdict?  These are serious questions that need to be discussed at the highest levels of the federal judiciary.

Wednesday, June 21, 2023

Federal Appeals Court Critical of Trial Judge for Failing to Investigate Juror Bias

 The Fifth Circuit Court of Appeals found that the trial court in U.S. vs. Gemar abused its discretion by failing to investigate juror bias alleged when juror was found to have been a close friend of the defendant's wife.  The trial judge failed to hold a hearing and the appeals court remanded the case for the court to conduct one.  The juror had attended a school dance with her in 1995 or 1996, attended Gemar's wedding, and had been friends on social media.  Gemar's wife had been present in the courtroom during the trial.  

United States v. Gemar, No.21-30666 (5th Cir. Apr. 19, 2023)

Saturday, June 17, 2023

Juror Sharing Newspaper Articles About Defendant with Fellow Jurors Results in Mistrial

 In Wichita, Kansas, on 4-26-23 the judge declared a mistrial in the Javan Ervin first degree murder trial after it was determined a juror had shared newspaper articles about the defendant with fellow jurors.  The District Attorney commented to the media that the average murder case requires 250 lawyer hours to prepare for trial.  That trial must now be redone due to a careless citizen's lack of good judgment and, frankly, utter disregard for the judge's instructions and the law.  The trial was reset for June 5, which is quite astonishing considering the crowded calendars of most courts.


Link:  https://greatbendpost.com/posts/2ece48a5-02e6-48e5-b064-98c424c9b378

Wednesday, June 14, 2023

Soliciting Comments from You

 I have had this blog for nearly 12 years with very few comments.  If you find the posts interesting, not interesting, lacking in something, PLEASE comment.  Thank you in advance.

Tuesday, June 13, 2023

Arrogant and Threatening Laughing Spectator Jailed

A spectator who had pointed and possibly intimidated jurors in a lengthy British trial was represented by counsel when his punishment for contempt of court was argued.  Nevertheless he was sentenced to jail for his conduct.  Here is the link:

https://news.yahoo.com/court-spectator-jailed-laughing-jury-133622145.html


Monday, June 5, 2023

Once Again, Jurors Do Not Lose Constitutional Rights When They Report for Duty

 In North Carolina in October 2022 a judge found a juror in contempt of court for violating the judge's personal requirement that jurors in his courtroom wear a mask.  Signs posted in the courthouse indicated no masks were required and court staff were not wearing masks.  Nevertheless the prospective juror was ordered jailed for 24 hours.  

I make no comment about the mask requirement.  But I repeat again that jurors and anyone appearing in court, including spectators, do not abandon their rights at the door.  If a judge observes possible juror misconduct or such is alleged, summary punishment is not appropriate.  The trial should be paused briefly for investigation by law enforcement (if no jury impaneled, excuse the juror),  the alleged miscreant should be given a Miranda warning and afforded appointed counsel, and no questioning should occur without counsel present.  

See prior posts on 2-17-23 and 11-15-22.

Monday, May 29, 2023

Juror Jailed for Internet Research of Defendant

 As reported by the BBC 2 days ago, a British juror was sentenced to 6 months in jail for "blatant" disregard of the judge's instructions by conducting Internet research about the criminal defendant in April 2022.  The result was a retrial in Chester Crown Court.  During deliberations 2 jurors told the court the juror had suggested they do their own research about the defendant.  The judge properly referred the matter to law enforcement instead of summarily punishing the juror for contempt of court.

Monday, May 15, 2023

Jail for Juror Recording Jury Selection on Phone


This is the second incident of juror misconduct in the Young Thug RICO trial in a Georgia court.  In January a juror failed to return when recalled to jury duty.  Instead she went on vacation to the Dominican Republic.  The judge ordered her to write a 30-page paper with 10 sources on the importance of jury duty.

The second incident occurred on 3-17-23.  A Youtube video from 4-3-23 shows the judge examining the juror who allegedly live-streamed jury selection.  She denied hearing all of the judge's 10-minute admonitions about social media comments about jury duty, conducting research, etc.  She stated she took the video but deleted it (no live-streaming) when the person sitting next to her told her she could not record the proceedings.  Court staff took the phone (no search warrant) and found the video in her deleted items.  The judge sentenced her to 3 days in jail.

I have several concerns:

1.  It appears the juror accused of misconduct appears without counsel.

2.  There is no indication she was given a Miranda warning.

3.  The judge, in chastising the juror, used several words uncommon to most people: ad nauseam (Latin?), litany, iteration, brazen, arduous.

4.  She is sentenced to 3 days in jail without an opportunity of allocution, that is, allowed to comment on what punishment if any is appropriate and explain her circumstances.

As I have stated elsewhere, I suggest that a judge, who may be a witness to misconduct, should refer the matter to law enforcement for investigation and possible criminal charges, including criminal contempt.

Wednesday, May 10, 2023

CARROLL-TRUMP Trial Judge Suggests Jurors Preserve Their Individual Anonymity and More

 At the conclusion of a jury trial a judge will usually thank the jurors for their service and contribution to the administration of justice under our Constitution.  However, following the verdict in the Carroll-v-Trump trial, the presiding judge went farther and strongly suggested that they do not disclose their individual identities, and  ORDERED them not to disclose those of their fellow jurors, "not now and not for a long time."  The judge gave no reasons but his rationale for such an unusual suggestion and order, but it is obvious. This is so even though this was not a criminal trial involving a mob boss or serial killer.  It was a civil trial.  What was the unspoken message?  If you go on the Today Show or Fox News or a podcast and talk about the trial you may enjoy your 15 minutes of fame, but you may end up with something more than you bargained for.   This is very chilling.  


LinkedIn Posts and Selfies by Juror in Trial of Former Florida Candidate for Governor

 Andrew Gillum, former candidate for Florida governor was found not guilty of lying to FBI this week.  The jury was deadlocked on all other counts so a mistrial was declared.  Days prior defense counsel sought a mistrial when it was revealed a juror had taken selfies at the courthouse and posted on LinkedIn.  The court found that the posts revealed nothing about the trial, denied the mistrial motion and cautioned the juror about such conduct.

Friday, April 28, 2023

Anonymous Jurors In "Carroll v. Trump" Warned Not to Disclose Their Names to Fellow Jurors

 Judge Lewis Kaplan in "Carroll v. Trump" has ordered an anonymous jury and special transportation of jurors with security detail to keep them safe.  The judge also warned the selected jurors against using their names even among themselves during deliberations.  The reasons are obvious.  Disclosure of jurors' identities on social media could result in intrusive, and possibly threatening, media coverage and threats to members of their families.  It will be interesting to see if any juror violates the judge's instructions about social media and Internet research.  Also what media attention they receive after rendering a verdict.  Jurors are relieved of their oath of confidentiality after the verdict is announced, however they are not required to speak to anyone about the case, including reporters.  I will be surprised if the jury is not sequestered during deliberations, for their own safety AND so that a mistrial is avoided due to contact with non-jurors.

Friday, April 7, 2023

Trial Court Denial of Forensic Examination of Juror's Phone Upheld

 Updating 7-29-22 posting: In September 2022 the 6th Circuit Court of Appeals upheld the trial court's refusal to order a forensic examination of a juror's phone.  The juror was on her phone posting on Facebook during deliberations including photos of fellow jurors.  Deliberations ultimately resulted in the conviction of the former Cincinnati city councilman of attempted extortion and bribery.  The appellate court had concerns over the jurors' privacy, constitutional rights and willingness to serve.  The trial court had determined that the postings did not indicate the juror was affected by outside influences.  The postings during jury selection and deliberations were private and viewable only by her friends. 


https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0220p-06.pdf



Wednesday, March 29, 2023

New Trial Denied on Appeal: Jurors Found Not Credible and Designated Alternates

The Ohio Court of Appeals declined to grant the defendant a new trial wherein it was alleged that a discussion about the case during a break between 2 jurors was overheard by a public defender not involved in the trial.  The judge and counsel interviewed the 2 jurors, but the court declined the defense's request to interview all jurors.  The judge determined that the jurors were not credible so they were designated as alternates.  Thus, they did not participate in deliberations.  In my experience most judges advise the lawyers prior to the beginning of the trial who will be the alternates, for example, the last 2 jurors seated by not stricken or excused.  Seems unusual for the judge to decide during the trial who will be the alternates.  https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2022/2022-Ohio-433.pdf

Sunday, March 19, 2023

Juror Punching Himself in the Face During Deliberations Was Properly Dismissed

 On 2-2-23 the Washington Supreme Court reversed its Court of Appeals and upheld the trial court's dismissal of a juror who became overwrought and punched himself in the face shortly after deliberations began.  Jurors reported they were uncomfortable being in a small room with this juror during further deliberations. No one wanted to sit by him.  The trial judge determined that the jurors conduct "affected the jury's process of deliberating freely" (jurors were worried about speaking freely, afraid his behavior would reoccur) and he was dismissed.   The juror and 2 others were interviewed by the judge.  The jury then convicted the defendant on 2 felony counts.  There is lengthy discussion in the opinion and concurrence showing the difficulty in deciding whether to discharge a deliberating juror when the state has a heightened evidentiary standard for a juror accused of nullification, refusing to follow the law, or refusing to deliberate.  The trial judge found the heightened standard did NOT apply and the Supreme Court agreed.

State v. Norman, No. 100777-9 (Feb 2, 2023)

Saturday, March 18, 2023

Update: Court Grants Motion for New Trial in Penalty Phase Due to Juror Misconduct

 In the Peter Avsenew double murder trial the defense alleged juror misconduct and in November moved for a new trial in the penalty phase. (this updates 11-25-22 posting). The jury had found him guilty in a second trial (first conviction tossed on appeal) and sentenced Avsenew to death.  The jury foreperson admitted to watching a documentary about the case during the period that the jury was deliberating the penalty.  Another juror admitted to doing outside research.  The penalty phase will start anew late 2023.

Wednesday, March 15, 2023

Fear of Losing Job Not a Valid Excuse for Release From Jury Duty

 It is a reality of impaneling a jury that many prospective jurors prefer not to serve for fear of losing their job.  However, federal law provides that in federal court "no employer shall discharge, threaten to discharge, intimidate or coerce any permanent employee by reason of such employee's jury service...in any court of the United States."  28 U.S. Code Sec. 1875.  Many states have similar protections.  Penalties for violations are severe.  States differ on whether the employer must pay the employee during jury service.  Example: Mass. law requires full pay for first 3 days of jury service.  Refer to www.paycor.com.  

Thursday, March 2, 2023

Juror Misconduct in Alex Murdaugh Murder Trial: Juror Discharged for Conversations with Non-jurors About Trial

 As closing arguments were about to begin today (3-2-23)  in the Alex Murdaugh murder trial in South Carolina, a juror was discharged for misconduct for discussing the case with 3 non-jurors.  Though the juror denied having done so when interviewed by state agents and the judge, those she spoke to testified under oath about the conversations.  Judge Clifton Newman stated, "Though it does not appear the conversations were that extensive, it did involve the juror offering her opinion on evidence received up to that point in the trial."  Five jurors have been dismissed over the course of the 6-week trial for medical issues and only one alternate juror remains.  

Laughter ensued when the dismissed juror said she wanted to get a dozen eggs she left in the jury room.

Wednesday, February 22, 2023

Some Jurors in Sensational Cases Want to Be Media Stars

 Without mentioning names, the foreperson in a grand jury probe is being criticized by some pundits for giving interviews on national media about the experience.  Without discussing deliberations or naming those who may be indicted, this is apparently not illegal.  But is it a good idea?  Example:  naming witnesses.  Generally at the state level (my experience in Minnesota) what took place during the grand jury's investigation is required to be confidential.  It is demeaning to the sanctity of the grand jury process for any grand juror to be hinting at what may result as to indictments.  It also raises the specter of jurors revealing juror misconduct which may put an entire trial at risk of a mistrial or verdict being annulled.  We have seen it in the past: the petit jury reaches a verdict and within days some or all appear on the major networks for interviews.  Many jurors do not want to serve, while others desperately want to serve and have their 15 minutes of fame (as foreseen by Andy Warhol.)

According to Barbara McQuade, law school professor and former federal prosecutor, Georgia state law concerning grand juror disclosures is "somewhat more lax" than Rule 6(e) of the Federal Rules of Criminal Procedure.  (See her excellent opinion piece on MSNBC website, 2-23-23)

Update: The presiding judge has made comments that he is concerned ("problematic") about the juror's press tour but it is not illegal so long as she, and other jurors, avoid discussing the jury's deliberations.  This grand jury cannot issue indictments.

Friday, February 17, 2023

Jurors Don't Forfeit Constitutional Rights at Courtroom Door

 I have written before that jurors accused of misconduct do not forfeit their constitutional rights at the courtroom door.  Some stories in past have made no mention of court-appointed counsel for a juror prior to judge questioning them about alleged violations of the court's instructions as to social media and outside research during the trial.  The juror should be advised on their 5th amendment right against self-incrimination.  Judges cannot will-nilly seize a juror's electronic device and conduct a forensic examination, nor can they allow lawyers in the case to do so.  The best route always is to pause, act cautiously, and refer the matter to law enforcement, even if a brief adjournment of the trial is necessary.  Also consult the attorney assigned to the judicial branch.

Wednesday, February 8, 2023

Discharging a Juror During Deliberations Is a Delicate Matter

 The purpose of voir dire is not to select the best jury but rather to uncover jurors that may be unwilling or unable to perform their duties, ie. "problem" jurors.  However, they may, unfortunately, not be discovered until deliberations.  Only then may a juror be discovered to be unwilling to deliberate impartially and follow the court's instructions.  This is a delicate inquiry by the court as the judge may not "interfere with the integrity of deliberations, which could result in a mistrial."  Under the Federal Rules the court must find "good cause", however it is not defined.

In U.S. v. Kemp, 500 F.3d 257 (3d Cir. 2007) on 2 separate occasions the judge interviewed each juror individually.  The case provides a good illustration of the types of questions that may be appropriate so as not to interfere with the integrity of deliberations:

1.  Are you personally experiencing any problems with how deliberations are proceeding without telling us anything about the votes as to guilt or innocence? If yes, describe the problem.

2. Are all of the jurors discussing the evidence or lack of evidence?

3.  Are all of the jurors following the court's instruction on the law?

4.  Are any jurors refusing to deliberate?

5.  Is there a juror who is refusing to discuss the evidence or lack of evidence?

6.  Is there a juror who is refusing to follow the instructions on the law?

In Kemp the Third Circuit held that courts may only excuse a juror when there is "no reasonable possibility that the allegations of misconduct stem from the juror's views of the evidence." (at p. 304)

(Drawn from "Excusing Jurors During Deliberations: Determining 'Good Cause' by Tracey E. Timlin, ABA copyright 2019)


Monday, February 6, 2023

Stranger Than Fiction: Dr in Rape Trial Disguises Himself to Tamper With Jury

 I learned from almost 20 years as a judge every day something crazy could happen that I'd never seen before.  I came across a 2017 news article describing how in 2016 a NY doctor, while a jury was deliberating charges that he raped a patient, disguised himself and "entered a private jury room and taped falsified jury instructions to the tables and doors." (The Patch, Port Washington NY).  Video footage shows him entering the courthouse dressed in a leather jacket and baseball cap, but leaving shortly thereafter in a suit and using a walker.  He was sentenced to 1-3 years in prison for third degree burglary and first degree attempted jury tampering. (Article also in NY Post)

Thursday, January 19, 2023

Chauvin Appeal Argues Juror Lied on Questionnaire About Involvement in Protests

 In briefs to the Minnesota Court of Appeals Derek Chauvin's lawyers argue again that juror Mitchell lied in answering "no" to jury questionnaire questions about his involvement in any protests over the killing of George Floyd or protesting police brutality.  Mitchell had traveled to Washington D.C. on 8-28-20 to participate in a march "Get Your Knees Off Our Necks" and wore a t-shirt bearing that slogan.  The defense argues that having no knowledge of these facts denied Chauvin the right to consider making a challenge to this juror for cause or, if denied, using a peremptory strike of Mitchell.  This is just one of many issues raised on appeal.

Wednesday, January 11, 2023

Alleged Juror Misconduct During Boston Marathon Bomber Trial Raised on Appeal

 Tsarnaev was convicted in the deaths of 3 people at the 2013 Boston Marathon and sentenced to death.  This sentence was reinstated by the Supreme Court last year.  Defense attorneys are alleging again that the trial judge erred in failing to investigate allegations that 2 jurors committed misconduct by lying during jury selection.  One juror denied commenting about the case online but had retweeted a post calling Tsarnaev a "piece of garbage."  Another allegedly received a message from a friend urging them to "play the part" in order to get on the jury and insure Tsarnaev went to jail to get what he deserves.  

In several posts here over the years I have emphasized that trial judges must not simply ignore these types of allegations of misconduct at the risk of trying the case all over again at great cost to all involved.  All allegations, whether seemingly trivial or not, should be thoroughly investigated even if it lengthens the trial time.  Defendants are entitled to fair trials under our Constitution regardless of the seriousness of the offense.

Tuesday, January 10, 2023

Defense Attorneys Seek Investigation of Social Media Post Possibly Made by Juror

 Aaron Dean, a police officer, was convicted of manslaughter in the 2019 shooting death of Atatiana Jefferson during a welfare check.  The Texas jury sentenced him to 11 years, 10 months and 12 days in prison, which his attorneys feel is highly unusual.  A copy of a social media post during the course of deliberations in the penalty phase was provided to the court.  Judge George Gallagher granted the defense motion to reveal the juror who may have posted on social media during the trial. (January 7, 2023). I will follow this story as matters progress and update this posting.

Tuesday, December 27, 2022

A New Threat to Your Next Jury Trial: Fake Jurors

 Fake electors have been in the news for almost 2 years, threatening our democracy.  In October during the Darrell Brooks homicide trial a new threat came to light, something possibly occurring for the first time: a fake juror posting on Reddit.  A person (r/Justice4Darrell) claiming to be a juror in the trial posted lengthy comments about the trial and solicited comments from followers.  The fake juror accused the judge of being biased and that Mr. Brooks was not being given a fair trial, constantly being interrupted and silenced (probably because he was representing himself and claimed to be a sovereign nation).  When they were found out and determined to be a fake, the faker apologized for the prank.  

So now we have another potential threat over which the court has no control:  the Wild West of social media.  Perhaps all the court can do is instruct the lawyers that any hint of social media comments by a juror (fake or not) coming to their attention must be immediately brought to the court's attention.

No Juror Misconduct Warranting New Trial in Scott Peterson Murder Case

 On December 20, 2022, a California judge denied the defendant's habeas corpus petition for a new trial, finding that juror 's responses on her juror (Richelle Nice) questionnaire were "the result of combination of good faith misunderstanding of the questions and sloppiness in answering." Peterson was convicted in 2004 and has had multiple petitions for habeas corpus, the vast majority of which have been denied by the appellate court.  An additional habeas corpus petition is expected after this ruling.  Peterson also alleged the juror was biased against him based on statements made in the deliberation room, ie. "pay for killing the 'Little Man," the victim.  The evidentiary hearing took place in March 2022 with arguments thereafter in August.  This case and others mentioned in this blog show us that legalese such as "lawsuit" is often misunderstood by jurors.  Most would not consider a divorce case or seeking. restraining order a lawsuit in my experience.

Saturday, December 17, 2022

The Case for Sequestering the Jury During Entire Murder Trial

 In posts on 6-11-12 and 7-18-13 I discussed the high cost of sequestering a jury for an entire trial.  Given the high number of mistrials and reversed verdicts due to juror misconduct in the past 10 years, this issue is worthy of reconsideration.  A few years ago I was invited to participate in a DOJ panel to discuss juror misconduct and the risks to high profile, expensive federal trials.  One conclusion reached was that heightened awareness among the judiciary was necessary. In several high profile cases since that time juror misconduct was alleged and in some resulted in dismissal of a juror:

El Chapo trial

Michigan Governor kidnapping trial

Australian member of parliament rape trial (just posted)

Virginia double murder case 2022 (recent post)

So what are the issues over complete sequestration?

    Jurors would try to avoid serving if separated from family, work and Internet access for weeks or         months.  Some would say anything to avoid serving.

    Extreme cost for 24-hour security, hotels, meals, transportation, and blocking access to Internet and monitoring social media. It would be like living on a desert island with a dozen or more strangers and perhaps only given newspapers redacted of any coverage of the trial to keep up with the news of the day.

    Jurors who serve may suffer anxiety and emotional distress being separated from loved ones

    Weekend release to their homes?  Seems reasonable but defeats the whole purpose.

In conclusion, I do not foresee a case where this would occur, except perhaps the criminal prosecution of former federal officials.



Friday, December 16, 2022

Rape Trial of Australian Parliament Member Mistried After Juror Conducted Research

 On October 27, 2022, the trial of an Australian member of Parliament was abandoned after court staff discovered that a juror had done Internet research about academic studies of sexual assault cases.  This was after 12 days of trial and 5 days of jury deliberation.  The financial and emotional cost to all involved over one juror's lapse in judgment is great.  Witnesses, including the female victim who testified for a week,  must testify again once a new trial occurs, possibly in February.  There is no indication of sanctions against the juror.

Wednesday, November 30, 2022

Should Jurors Be Allowed to Take Notes on an Electronic Device?

 A post on January 6, 2012, here discussed the need for the judge to anticipate that a juror may want to use a laptop or iPad to take notes during trial.  Technology has advanced significantly since that time so this issue needs revisiting.  There are several problems with this:

1.  The judge cannot tell if the juror is conducting research (unless Internet access is blocked) or communicating with others or is recording the proceedings (this could raise issues if the official record of the court reporter is contested).

2.  The distraction to others from the device keyboard.  Perhaps this can be ameliorated with a quiet keyboard or a program converting written notes using a stylus that converts it to printed words.

3.  Other jurors may observe greater note-taking as some indication that important points of evidence are being presented, while lack of note-taking means the opposite.

4.  Jurors' notepads are generally secured in the courtroom by staff when trial is not in session.  The juror may not want their device kept at the court, subjecting it to theft or hacking of notes and their personal files. Perhaps each juror could be provide an iPad which they access with their chosen password.

5.  The device could be ordered confiscated for forensic examination if there is an issue of juror misconduct such as research.  Strongly suggest this only occurs after a hearing where the accused juror has counsel as there are serious issues of privacy.

I'll add others as they occur to me.  Some things in trials are best handled the old-fashioned way.

Friday, November 25, 2022

Florida Juror Hearing Death Penalty Phase Interviewed by Judge About Watching Documentary About First Trial

 November 21, 2022:  In Broward County, Florida, a juror hearing the death penalty phase of the murder trial of Peter Avsenew is accused of watching a documentary about the first trial in 2018.  That trial resulted in a conviction and sentence of death.  The state Supreme Court reversed the conviction and ordered a new trial, which also ended in a conviction in June 2022 and a death sentence.  The documentary, "Evil Lives Here," had an episode about the case and  referred to an inflammatory letter the defendant wrote to the judge and that he gave the victims' families the middle finger in the courtroom.  This information was shared by 2 jurors with the panel in a WhatsApp chat.  This information was revealed by a concerned juror.  Defense counsel want all jurors interviewed.  The next hearing is December 7.

A video can be viewed on CBS Miami in which the judge interviews the juror (who is off-camera) about his misconduct.  My concern is that, as stated in a 11-15-22 posting, this juror apparently had no counsel, was not given a Miranda warning, and has confessed in open court to contempt of court for which he could be fined or jailed, or could be charged with a crime.

More as the case progresses.


Monday, November 21, 2022

Judge Has Wide Discretion in Excusing Jurors from Serving

 As a judge I heard many reasons why jurors did not want to serve or were worried about their ability to be fair and unbiased.  A common question jurors are asked during jury selection (voir dire) is whether there are any events upcoming during the anticipated trial duration that would prevent them from serving or affect their concentration on the evidence.  These often include:

Lack of daycare

Losing income because employer will not pay them during jury duty

A serious medical treatment or surgery for themselves or family member

Final exams at school or college

A long-anticipated trip out of state 

Other reasons for being excused are personal court experiences which are similar, as a party or witness; expert knowledge such as will be presented at trial; acquaintanceship with judge, attorney, witness, court staff, or another juror.

A juror was excused in September 2022 in the R. Kelly child sex abuse trial after having a panic attack during closing arguments and being unable to continue.  In the recent trial in New York against the Trump Organization, a prospective juror told the judge that the former President makes him so ill and that he has such negative feelings about him that he cannot be a fair and unbiased juror.  In the same trial another juror said "there is no chance in hell" she could have been impartial.  

It is common in sexual assault cases that prospective jurors are overcome with emotion when questioning dredges up long "stuffed" and unexpressed memories about their own victimization floats back in their consciousness.  Only rarely do the prosecution and defense disagree on excusing a juror in that situation.

Judges have wide discretion in excusing jurors from service.  As I indicated in a prior post, judges and attorneys should be cautious about "brow beating" a juror into stating that despite their feelings they can be fair and impartial.  

Not for the First Time, a Juror Speaks to His Priest About Case and is Excused from Deliberations

 In the Kristin Smart murder trial of Ruben Flores in Monterey County, CA, a juror went to confession before her priest and asked for spiritual guidance despite having been warned by the judge not to speak to spiritual advisers and therapists.  The judge stated that "sometimes the appearance of impropriety is just as bad as actual impropriety" and out of an "abundance of caution" the juror was excused.  The jurors had been deliberating for 3 days.  The juror was excused 10-13-22, an alternate juror sworn in, and the jury was instructed to begin deliberations anew.  The jury found Ruben Flores not guilty of helping his son bury and hide the victim's body in 1996.

See prior post: 8-8-14.

Tuesday, November 15, 2022

Presiding Judge Should Act Cautiously When Considering Contempt for Juror Misconduct

 A number of the posts over the past 11 years have been about judges finding a juror in contempt of court and either fining them or sending them to jail.  Having found a juror in contempt near the end of my career, I learned that the differences between civil contempt of court and CRIMINAL contempt of court have long been the subject of considerable disagreement between legal scholars.  What I have concluded from a fellow judge who heard the appeal of my contempt finding is as follows:

1.  Do not handle the contempt proceedings yourself, particularly if you are a witness to any improper, and possibly criminal, conduct

2.  Refer the matter to law enforcement for investigation and reporting to the prosecuting attorney for review and possible charging

3.  The juror accused of misconduct has all the constitutional protections of any criminal defendant: presumption of innocence, appointed counsel if indigent, jury trial, etc.

4.  Do not question the juror without (1) a Miranda warning; (2) juror has counsel; (3) consider appointing a special prosecutor to question the juror. Alternative to all of this is #2 above.

In summary, if you handle the contempt proceedings yourself you are basically acting as prosecutor, jury and judge.  Avoid substantial stress by following #1 above.  You may also avoid an appeal which reverses your decisions. And good luck!


Monday, November 14, 2022

Virginia Double Murder Conviction Vacated Due to Juror Experimenting with Rifle Use for Suicide

 On November 9, 2022, a double murder conviction (March 2022)  in Fairfax County, Virginia, was vacated by the trial court due to a juror having experimented with use of a rifle for suicide.  The defense had presented evidence of possible suicide with a rifle.  A juror went home and used a rifle to see if that was physically possible.  Because of the weight and length of the .22 ca rifle the juror determined that suicide in that manner was not possible.  She shared her experiment with her fellow jurors during deliberations.  Prosecutors have indicated they will retry the case.  Once again, one juror violating the judge's admonitions has caused a waste of public and private resources in the tens if not hundreds of thousands of dollars.

Wednesday, October 26, 2022

With New Covid Variants Expected, Judges Should Consider Response to New Mask Mandates

 As I am now retired I feel I can share a couple of personal experiences during my last few months on the bench related to Supreme Court-ordered mask mandates.  In 2 separate jury trials on the first day of jury selection, jurors entered the courthouse unmasked despite signs everywhere that masks were required.  In each case the prospective juror told bailiffs in the hallway that they would not wear a mask.  I instructed the bailiff that they should put on a mask and enter the courtroom for me to address them.  Each juror still refused to wear a mask.  They entered the courtroom unmasked and each told me they would not wear a mask.  Neither chose to give me a medical, scientific or political reason.  One I simply excused.  The other was told to come back the next morning after consulting an attorney to tell me why they should not be held in contempt of court.  This juror came back with a lengthy letter from his physician explaining his various medical problems which justify no mask wearing.  Despite being clearly bogus, the juror was excused.  I concluded that the entire trial would be at risk having such a combative person on the jury.

Judges may want to consider their various responses to belligerent jurors if mandates such as in 2020-21 return.  I wish you luck.

Monday, October 24, 2022

Flirting Juror Dismissed In Michigan Gov Kidnapping Trial; Skittles at Issue

 On October 14, 2022, the judge in the trial of Paul Bellar, accused of plotting with others to kidnap the Michigan Governor, dismissed a juror for alleged flirtatious non-verbal communication with the defendant.  Over multiple trial days attorneys observed the flirting as did the court.  Mr. Bellar was also alleged to have been flirting back to the juror.  Despite objections from defense counsel and discussion about Mr. Bellar having Skittles in his closed fists, the juror was dismissed.

UPDATE:  All 3 defendants found guilty.  No indication of further juror issues.

Wednesday, October 19, 2022

City of Omaha Hit With $700,000 Verdict Seeking New Trial

 A former Omaha Police Captain sought damages for wrongfully being passed over for promotion due to her past allegations of sexual harassment against another officer in the department.  The federal jury awarded her $700,000 but the City is now seeking a new trial due to alleged communications between a juror and a former Omaha police officer.  As is often the case no one was specifically named.  As details evolve I will update this post.

Saturday, October 15, 2022

Parkland Trial Death Penalty Phase: Juror Claims Threat By Another Juror

 Deliberations in the Parkland Murder Trial in Florida on October 13 ended in a 9-3 vote for a life sentence rather than death for Nikolas Cruz.  One juror told the state attorney's office that another juror threatened her during deliberations.  The state is seeking an investigation by the court of possible juror misconduct, however the verdict cannot be overturned nor a mistrial ordered.  A unanimous verdict is required under Florida law for the death penalty.  Jurors could not agree that aggravating factors outnumbered mitigating factors.  Life sentences will be formally ordered on November 1.  It is possible that the trial judge will leave all investigation to the state after sentencing since the outcome cannot be changed.  Jurors can be questioned by the state and potential miscreants would be entitled to counsel if interviewed.  

Tuesday, October 11, 2022

When First Trial Ends in Mistrial, Should Jurors Remain Under Oath of Confidentiality?

 Elkmont, Alabama:   In September the trial of a teen accused of killing 5 family members ended in a mistrial when the FBI was finally able to unlock the cellphone of one of the victims.  The jurors were dismissed and were promptly interviewed by the media without their names being disclosed.  They described the graphic evidence as horrific and difficult to watch, warning the next panel of jurors to be prepared to handle the emotional toll.  They had many questions about the evidence and said they would not have found the teen guilty.

So we have extensive coverage in the media of these jurors' personal opinion about the teen's guilt or innocence in a case which will be re-tried.  While the court properly dismissed them it raises a question in my mind:  should the jurors remain under their oath of confidentiality until the second trial is concluded?  This would require a change in most court rules, I believe.  In a second trial, can both the teen and the State have a fair trial?  It is worth thinking about.  

Tuesday, September 27, 2022

New Trial Warranted Where RN Juror Described Personal Experiences in the ER In Med-Mal Trial Deliberations

 Wobbler v. Kamath, California Court of Appeals (August 12, 2021) A159347:

The trial court dismissed an RN juror, seated an alternate juror, then, after Defendant-physician obtained a favorable verdict, granted a new trial based on juror misconduct.  This decision was upheld by the appellate court.  A key evidentiary issue at trial was whether the plaintiff had been wearing a bandage over the sutured incision in his arm when he arrived by ambulance at the hospital.  The evidentiary record on this issue was solely medical staff notes of the injured party's condition arriving at the hospital but no clear reference to a bandage.  No medical staff testified regarding the notes.  During deliberations the RN juror, ding to the affidavit of another juror, "brought inter own personal experience as an RN...and expressed her nursing opinions to the other jurors on various issues."  The RN juror stated that the presence of a bandage on his arm would have been documented at the time of his admission to the ER.  The trial judge characterized this as "specialized information" constituting prohibited juror misconduct under California law.  The judge further found this information to be prejudicial and that the specific instance stated by the affiant-juror were more credible that the RN juror's general denials.

In California the evaluation of jury misconduct is a 3-point inquiry:

1.  Are the affidavits supporting the motion for new trial admissible?  If so,

2.  Do the facts establish misconduct by the juror?, If so,

3.  Was the misconduct prejudicial?

The trial judge answered all 3 affirmatively and is granting a new trial was affirmed.

One can only imagine the jurors insisting that the RN juror answer their questions about best practices in the emergency room.  Judges instruct jurors that they do not have to leave their personal experiences and common sense at the door to the deliberation room.  However, this does not extend to specialized knowledge.  Nevertheless, we still have doctors, lawyers, engineers, accountants, mechanics, etc., serving on juries.  Always a cause for concern if their expertise is part of the subject matter of the trial.

Wednesday, September 7, 2022

The Importance of Plain Language in Questioning Jurors

 In a 2016 NY case a juror was asked if any of his "close relatives" had ever been charged.  He said no, but after the trial it was discovered that his father had gone to prison for 7 years.  Was he lying?  Is this juror misconduct?   But what does "close relatives" mean?  He was raised in an orphanage and was never close to his father.  Judges and lawyers during jury selection need to use plain language and avoid legalese.  Elsewhere in this blog I have noted that standard instructions over the past 10 years need to be constantly updated as to social media venues that jurors could potentially use to discuss the case during trial.  The outdated instructions often refer to MySpace and fail to include media sites not even around then, such as Snap, Instagram.  Some jurors when found to have been on social media about the case have replied, "You never said we couldn't use ______!"  

Legalese terms are familiar to judges and lawyers, but not non-lawyers.  "Beyond a reasonable doubt" is a concept that is difficult even for lawyers and judges to agree upon.  I have asked 25 potential jurors to raise their hand if they have ever been a party in a lawsuit.  No hands go up.  Then I would ask if any are divorced and half of them raise their hands.  They didn't think a divorce case is a "lawsuit," even if contested.  Likewise, most would not consider a DWI to be a "crime."  

In conclusion, the vast majority of jurors have no intention to lie during jury selection.  It is up to the judge to insure that the questions are clear and understandable.

See also 4-16-18 post.  

Thursday, September 1, 2022

Update to August 14 Post: Whitmer Kidnapping Trial Juror Allowed to Remain

 Barry Croft and Adam Fox were convicted on August 23 in the Whitmer kidnapping trial.  Within hours the trial judge released the documents related to the alleged misconduct.  A court clerk reported that the person who relayed the alleged comments by the juror to defense counsel had not themselves spoken to the juror, therefore it was secondhand (double hearsay) tip.   The prosecution agreed that the judge could have a private conversation with the juror, but the defense objected.  The judge met with the juror and determined that the juror could serve impartially, was not manipulative and was, therefore,  not discharged.  He determined there was no evidence of a "predetermined decision to find the defendants guilty."  Post-trial motions may occur prior to sentencing in December.

Thursday, August 18, 2022

IS IT REALISTIC TO EXPECT JUROR'S TO OBEY JUDGES' ADMONITIONS?

 Is it realistic for the court to expect jurors to comply with the instructions about not discussing the case on social media or conduct Internet research?  One can certainly wonder.  It has recently been reported that participants in the January 6 Capitol insurrection are attempting to profit from their notoriety through media deals.  The Justice Dept. could seek "claw back" of any money received by participants for book deals, sale of video footage from the riot, etc., as criminally-convicted defendants cannot profit from their crimes.  (AP News, 8-14-22).  It's not a stretch to assume that in a highly-reported trial a juror would be untruthful in jury selection questioning as they want to be on the jury so as to profit from their service after reaching a verdict.  After the verdict is read and accepted by the judge the juror is released from their oath of confidentiality.  One need only harken back to sensational trials of the past few years to recall jurors appearing live on morning talk shows about their jury service within a few days of the verdict.  If you want to view a worst case scenario from tv, just Google "Monk", season 4, episode 16. 

Sunday, August 14, 2022

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.

Tuesday, August 2, 2022

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.

Friday, July 29, 2022

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.

Wednesday, April 27, 2022

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.

Wednesday, October 27, 2021

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.

Friday, July 16, 2021

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)

Friday, April 23, 2021

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.

Friday, November 6, 2020

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

Friday, April 24, 2020

Post-Covid 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

Tuesday, March 10, 2020

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.

Friday, December 6, 2019

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

Monday, September 16, 2019

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

Tuesday, July 30, 2019

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

Friday, April 12, 2019

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

Tuesday, April 9, 2019

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/

Friday, November 30, 2018

Tuesday, November 6, 2018

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.

Friday, May 4, 2018

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/

Friday, April 27, 2018

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

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

Friday, April 20, 2018

Friday, March 23, 2018

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

Friday, February 23, 2018

In Rare Cases Voir Dire May Be Closed to the Public

Here is a link to a recent trial in which, for the privacy concerns of potential jurors, voir dire (jury questioning) was closed to the public. The original conviction was reversed for juror misconduct.  The trial judge must make specific findings that closure is justified. 
https://www.gjsentinel.com/news/western_colorado/interviews-of-prospective-blagg-jurors-closed-to-public/article_94c11180-179e-11e8-96c9-10604b9f1ff4.html