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.  

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.

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.

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.

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"?

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.

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.

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.  

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/ 

Oklahoma Judge Accused of Texting and Searching Social Media During Murder Trial

 I may need to change the title of this blog to jurors AND JUDGES behaving badly:

https://nypost.com/2023/07/27/oklahoma-judge-traci-soderstrom-accused-of-using-phone-during-murder-trial/#

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.

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.

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)

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

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.

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

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.

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.

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.

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.

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.

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

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

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)

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.

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.  

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.

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.

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.

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)

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)

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.

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.

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.