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.

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.

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.

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.

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.

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.

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!

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.

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.

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.

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.

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.  

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.  

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.

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.  

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.

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. 

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.