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.

SUDOKU-PLAYING GETS JUROR DISMISSED

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

Juror Found in Contempt and Fined over $11,000

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

Judges Should Not Disregard Affidavits Alleging Juror Misconduct

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

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

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

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

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

Zoom Jury Trials Face the Risk of Hacking

Post-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

Juror Dismissed From Federal Leaker Case

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


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


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

One Judge's Opinion: Juror Misconduct Threatens Justice

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

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

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


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

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

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


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

What is a "Rogue Juror?"

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


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

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

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


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

Defense Attorneys for El Chapo File Motion for Retrial

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

El Chapo Trial May Involve Juror Misconduct

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


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

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

This is quite astonishing:



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

Prospective Juror in Criminal Case Causes Mistrial

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

After Trial, Juror Sends Victim "Virtual Hugs"

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

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

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

100 Years Ago: The Jurors Drank the Evidence

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

ABA Article on Lawyers Searching Potential Jurors on Linked-In

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


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

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

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

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

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

British Juror Gets Suspended Jail Sentence for Internet Research

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

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

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

Juror Playing Games on Phone During Deliberations Held in Contempt

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

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

Trial Court Needs to Investigate Colorable Claim of Extraneous Influence on a Juror

Here is another case of a trial judge failing to investigate further alleged possible extraneous influence on a juror or juror misconduct during a trial:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0025p-06.pdf

Juror Who Lied on Questionnaire Spends Day in Jail

A juror boasted to others that he had lied on his questionnaire.  Too bad for him that a prosecutor heard his boast.  Juror found in contempt and spent a day in jail holding.


http://www.post-gazette.com/local/south/2018/01/29/Allegheny-County-direct-criminal-contempt-juror-lied-Daniel-Puhala-Judge-Donna-Jo-McDaniel/stories/201801290097

Juror Jailed For Derogatory Comment About Defendant

http://host.madison.com/news/local/courts/juror-jailed-over-remark-in-sauk-county-child-porn-trial/article_a95bd26d-6fe9-5729-be49-03597a37bde6.html

Habeus corpus granted to convicted defendant where juror brought extraneous social media information to deliberations

Juror in murder trial brought to deliberations Facebook information regarding the defendant's past history and information on an online eulogy for the victim of the murder. Juror also "Googled" gang information regarding gang codes and activity.  Defendant was convicted. Trial judge denied an evidentiary hearing on juror misconduct.  Federal court has granted habeus corpus.  The state must grant a new trial within 90 days of the order or when appellate review becomes final, or defendant must be released.


Link:  http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/Other/Ewing.ashx

When Colorable Claim of Juror Misconduct is Raised, Inquiry of Jurors MUST Occur

The link below is to federal 6th Circuit decision reversing the trial court which failed to itself or permit counsel to inquire of jurors as to a color claim of misconduct affecting the verdict.  Here it was a juror's extraneous communications with a prosecutor (who was not involved in the case).This is but one of several cases in the past few years cautioning trial judges not to ignore claims of alleged juror misconduct but to inquire further through counsel.  (a Remmer hearing) There should not be a race to finality but rather a thoughtful systematic inquiry into what happened and how it may have affected the verdict.


http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0208p-06.pdf

Why Juror Misconduct is So Wasteful and Demands Harsh Consequences

In June a California murder trial was about to begin after FOUR weeks of jury selection and the questioning of hundreds of prospective jurors when juror misconduct was found.  It is unclear from the reports but it appears a juror chosen to hear the case was conducting Internet research in violation of the court's order.  This is a misdemeanor in California.  The trial had to start all over again as a result and the juror (behaving badly) is facing misdemeanor charges.


http://www.vcstar.com/story/news/2017/06/27/judge-declares-mistrial-murder-case-after-finding-juror-misconduct/430576001/

Hilarious Comments From Jurors During Shkreli Trial Jury Selection

https://harpers.org/archive/2017/09/public-enemy/

Jurors Cannot Consider Possible Sentence in Deliberations in Criminal Case

Judges instruct jurors that during their deliberations they cannot consider the possible sentence in determining guilt.  The jurors in this case considered the comments of a juror about possible sentence, including release and credit for jail time already served.  The murder conviction was reversed and a new trial ordered.


LINK:    http://www.courts.ca.gov/opinions/documents/E065257.PDF

Pills Disappear From Jury Deliberation Room During Deliberations

During deliberations the Ohio jury had in its possession 71 oxycodone pills which were evidence admitted at trial.  Sometime during deliberations someone, perhaps when the room was empty, took advantage and stole them.


http://www.dispatch.com/news/20170727/71-oxycodone-pills-go-missing-after-jury-deliberations-in-drug-case

Science for Judges to Consider Relative to Length of Deliberations

A recently-released book by Stulberg and Magness entitled Peak Performance has very interesting information about the science of thinking, performing tasks, burnout, and rest which I think is applicable to jury management.  It has made me think about the significant downside to having jurors sit in a courtroom for several days, if not weeks, then only to spend hours in deliberations, cooped up in a windowless room, away from family and work, with no exercise and crummy meals, and expecting them to make rational decisions.  The book is worthy of a look for trial judges.

Juror Brings Newspaper into Deliberations: Found in Contempt and Jailed

http://www.morningjournal.com/general-news/20170628/lorain-county-juror-sentenced-to-30-days-in-jail-for-contempt

Allowing Any Device in the Jury Deliberation Room Is a Bad Idea

In the Arizona case linked below the trial court allowed a court laptop in the deliberation room for the jury to review certain evidence admitted at trial.  Unfortunately there was a "witness interviews" disk also in the laptop disk drive, evidence not admitted at trial.  The jurors saw the disk but did not view it and contacted the bailiff immediately.  No mistrial was ordered by the trial court and this decision was affirmed.  No harm, no foul.  Still a very bad idea.  I am only familiar with MN procedure where this would not have been allowed.


http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2017/1%20CA-CR%2016-0240.pdf

Federal Circuit Court of Appeals Remands for Evidentiary Hearing of Issue of Juror's Blogging During Trial Deliberations

A defendant was indicted for wire fraud, however for 2.5 years prior to that the civil litigation against him was the subject of hundreds of comments in a blog, some of which were inflammatory.  Immediately after the verdict of guilty the government lawyers informed defense counsel of blog-post comments from the night before the verdict authored by an anonymous person claiming to have been a juror (#8) in the trial.  See page 10 of the opinion linked below for the juror's posting. 


The court interviewed the juror (#8) and she denied seeing the blog mentioned above or discussing it with other jurors.. The court declined to interview any other jurors.  This was followed by still other posts from alleged jurors about #8's comments.  The trial court declined motions for reconsideration and new trial.  The appeal followed.




The Court of Appeals has remanded the case for an evidentiary hearing.  The moral here:  TRIAL JUDGES MUST THOROUGHLY INQUIRE INTO ALLEGED MISCONDUCT BY JURORS DURING DELIBERATIONS.



U.S. v. Zimny:     http://cases.justia.com/federal/appellate-courts/ca1/15-2144/15-2144-2017-01-24.pdf?ts=1485284403

Study Shows Foreperson's Impact on Jury Decision-making Process

Linkhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=2966759

Millenial Blows Off Jury Duty, Incurs Wrath of Judge, Goes to Jail

LINK:


http://www.cantonrep.com/news/20170509/stark-judges-stern-message-dont-blow-off-jury-duty

Thank you, Jurors!

The judicial branches thank jurors for faithfully performing their civic duty.
Here is a link to a video about federal jury service.
http://www.uscourts.gov/news/2017/05/02/jury-service-close-highlights-appreciation-week

JURORS GONE WILD BECOMES ISSUE ON APPEAL

All-night party by sequestered jurors becomes issue on appeal.


Link: go to page 76


http://www.ontariocourts.ca/decisions/2017/2017ONCA0273.pdf

Law Review Article on What Texting By Jurors Means to the Courts

This law review article raises few issues not previously discussed in this blog, but the writer does focus on the unique problem of discovering a juror's texting as opposed to a juror commenting on Facebook or Twitter.  He concludes that as to texting the issue is not what the texter sends but rather what they receive via text message.


http://lawreview.syr.edu/wp-content/uploads/2017/03/Vol-67.1-Powers.pdf

Some Things for Trial Lawyers to Consider in Trial

It has always amazed me the way that evidence, even in 2017,  is presented in jury trials in a 20th century way, even with video depositions and digital graphic models.  It is well-documented that individuals learn in a variety of ways: by listening, by seeing, by a combination of the two plus taking notes, by having a dialogue with questions and answers.  I have presided over jury trials where there are few if any maps or photos depicting where and how the incident occurred.  Yet lawyers and judges are shocked when jurors do on-line research at home or even visit the scene of the crime or accident.  Particularly millenials want all of the information to make a reasoned decision and they are used to having it at their fingertips.  They believe they can sift the truth from the untrue online.  Yet judges and lawyers put them "in a box", literally and figuratively, telling them they can only consider what they hear and see during trial in the courtroom.


One of the many possible solutions to reducing the possibility of jurors hitting the Internet for answers is a stipulated trial notebook, maybe a three-ring binder or even a tablet not accessible to the Internet, containing:


Photos and videos
Important paper exhibits
names and photos of witnesses
stipulated facts
glossary of terms and their definitions, such as medical and scientific terms


Jurors want the story....THE WHOLE STORY.  They don't like that the judge and lawyers (who are in an exclusive club) are keeping them from hearing and seeing the whole story.  Jurors want to make a good decision.

Would Allowing Jurors to Ask Questions Solve the Juror Research Problem?

Here is a link to Pa. Judge Turgeon's article:


http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/Other/JF%2017%20Lawyer%20JurorQuestionssm%20(002).ashx

Juror Visits Scene of Crime Resulting in New Trial, Eventual Discharge From Employment for Misconduct as Juror

Here is a link to a VT Supreme Court decision sustaining the dismissal from employment of a state worker who committed misconduct as a juror during a federal capital murder jury trial.  The juror visited the crime scene contrary to the judge's instructions and shared his observations with his fellow jurors.  Five years later he revealed these facts to the defendant's attorneys and signed an affidavit about what he had done.  However, under oath in a post-trial hearing in federal court he denied what he had admitted in his sworn affidavit, thereby compounding his misconduct.   The murder conviction was vacated and a new trial ordered.  News of his misconduct got to his supervisors and he was fired.  He filed a grievance.  His firing was sustained by the VT Supreme Court.


The federal court found this juror had displayed "brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial."  He was terminated from state employment for gross misconduct related to his fitness to serve as a state employee.


https://www.vermontjudiciary.org/LC/Supreme%20Court%20Published%20Decisions/op16-123.pdf

SCOTUS Hearing Arguments Regarding Racial Bias In Jury Deliberations

Interesting post in SCOTUS blog about arguments before US Supreme Court regarding state law prohibiting defendant from introducing evidence of racial bias within the jury deliberation process.


http://www.scotusblog.com/2016/10/argument-preview-justices-to-consider-racial-bias-in-jury-deliberations/

Attention Trial Lawyers: Jurors Don't Like Your Experts

Link to a good article from Arizona Attorney magazine.  Click arrows at top to advance pages.


http://www.azattorneymag-digital.com/azattorneymag/2016expertwitness?pg=9#pg9

Brief Video About Internet Research by Prof. Dershowitz

https://www.youtube.com/watch?v=9X-o149GGns

Prospective Juror Refuses Service, Sentenced to Jail

Jury duty is a duty of citizenship.  Judges do not take lightly those who fail or refuse to appear.  This citizen was sentenced to jail:


http://www.wyomingnews.com/news/cheyenne-man-gets-jail-time-for-skipping-jury-duty/article_375c3a16-62a9-11e6-aa89-4fc82066a6a5.html

Article "Are We Driving Jurors to the Internet?"

Here is a link to the article:


https://bol.bna.com/are-we-driving-jurors-to-the-internet-perspective/


Some judges have suggested the court start allowing jurors to submit questions.  A Minnesota judge did this for many years in civil cases.  The court for a variety of good reasons leaves jurors in the dark about the parties or defendant in a criminal case.


I love the photo: women jurors in hats and men in suits and ties.  A prospective juror arrived in our court this week in a t-shirt with the name of his favorite team, cargo shorts and flip-flops.

Sitting Juror-Paranormal Medium Claims Visit by Victim-Deceased, Is Excused From Jury

A Calgary juror, an alleged paranormal "medium", claimed she was visited by the victim-deceased. She was excused.


http://calgaryherald.com/news/crime/juror-dismissed-at-start-of-strasser-hird-trial-after-claiming-visit-from-victims-ghost

"Lovestruck" juror Jailed for Falsely Facebooking Another Juror and Research During Trial

Ah, spring, when a young man's fancy turns to...
A Florida juror has been jailed for his Facebook false communications with a fellow juror (post-trial)and his research of a term in violation of the judge's admonitions.  He attempted to get the other juror to make false allegations about jury misconduct in order to get the guilty verdict overturned:


Link: http://www.mypalmbeachpost.com/news/news/crime-law/juror-gets-8-days-in-jail-for-researching-word-pus/nrTwd/

Proposed CA Law Would Allow Judges to Fine Jurors Up to $1,500 For Social Media Violations

Here is a link to LA Times article.  Perhaps jurors who admit to being "addicted" to social media and Internet research should simply be excused from jury service rather than risk a mistrial.
http://www.dailynews.com/general-news/20160424/california-jurors-misusing-the-internet-could-face-fines-up-to-1500

Juror's Objection to Lack of Diversity in Jury Panel Results in New Trial

The issue of racial makeup of juries came to a head when a juror arose in a Tennessee courtroom and stated that he felt it was unfair for two black men to be tried when no person of color was on the jury panel.
Here is a link to the newspaper article which discusses BATSON challenges to an attorney's peremptory strikes of jurors.  If there is an objection to a strike as being racially-motivated, the striking lawyer must establish a race-neutral basis for striking that juror.


The fact relevant to this blog is that it is alleged that during a break the juror's were discussing this issue, thereby violating the judge's admonition not to discuss the case:


http://www.tennessean.com/story/news/crime/2016/04/25/nashville-jurors-objection-race-leads-new-trial/83290360/

The Unusual Precaution of Sequestration During an Entire Trial: Being Cut Off From All Media

Jurors are usually not sequestered during deliberations, but if sequestered then only during deliberations.  I have seen it suggested that jurors be sequestered during the entire trial, not just deliberations, to prevent violations of the court's orders not to do Internet research or discuss the case on social media.  Here is an article about life for jurors so sequestered:


Linkhttp://www.tennessean.com/story/news/local/davidson%20/2016/04/15/life-sequestered-juror-vanderbilt-rape-case/82993214/

In Widely-Followed NY Trial, Juror Fails to Disclose Father Went to Prison; Also Fails to Disclose Pre-trial Anti-Police Posts on Social Media; Conviction in Jeopardy

Former NY police officer was convicted of manslaughter.  The juror lied during voir dire about any family members having been accused of a crime.  He also posted anti-police comments on social media prior to trial.  Some speculate that he really wanted to serve on the jury.  Defense counsel are seeking a new trial. 


LINK:  http://www.nytimes.com/2016/04/14/nyregion/juror-imperils-conviction-of-peter-liang-ex-officer-in-brooklyn-killing-of-akai-gurley.html?emc=eta1&_r=2

MN Judge Did Not Err in Immediately Excusing Juror Drunk During Deliberations

In a decision reported March 14 the Minnesota Court of Appeals found that a MN judge did not err in not sua sponte excusing a drunk juror during deliberations who had also been disruptive during lunch at a restaurant.   The criminal defendant's counsel chose to ask the court to dismiss the jury for the day.  This occurred and the juror deliberated the next day and the defendant was found guilty and appealed.  This case also raises the question of how much inquiry the judge can make of the juror without first offering the juror the opportunity to consult an attorney before incriminating herself for contempt of court for being drunk at court.

Is Criminalizing Juror Misconduct the Only Solution?

Here is a link to a thought-provoking article about criminalizing juror misconduct related to social media.  The author states that deterrence is the primary goal, but comments at the end on the various objections to this approach:


1.  It impedes the trial judge's ability to inquire into the misconduct; the alleged "bad juror" can refuse to incriminate themselves by responding to the judge's inquiry.


2.  Judges are resistant to the legislature intruding in the court's province, the courtroom.


3.  Jurors will be even more discouraged from even showing up for jury duty.


The article is short and worthy of reading.


http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1762&context=ndjlepp

Florida Supreme Court Rules Drunk Juror Should Not Have Been Jailed

Here is the link.  Basically the juror should not have been found in DIRECT contempt of court.


http://www.palmbeachpost.com/ap/ap/florida/florida-supreme-court-sides-with-drunk-juror/nqnGW/

New Report From NY State Bar Association on Social Media Jury Instructions

http://www.nysba.org/Sections/Commercial_Federal_Litigation/Com_Fed_PDFs/Social_Media_Jury_Instructions_Report.html

Juror Who Lied During Voir Dire May Be Charged with Felony

A mistrial resulted from a juror's failure to disclose during voir dire that she was the victim of sexual assault.
She may now be charged with a felony.
LINK:  http://bismarcktribune.com/news/state-and-regional/juror-in-mistrial-of-west-fargo-teacher-s-sex-case/article_866398a5-94e1-58f6-8e6d-8c6e434d4afe.html

Googling Juror Causes Mistrial

http://www.courts.ca.gov/opinions/nonpub/G049353.PDF

Queens NY Juror Fined $1000 For Dishing on Facebook During Trial

Here we go again....and again!  It is frankly astonishing that apparently intelligent jurors feel the need to blab on Facebook about their jury experience during the trial despite the strong warnings of the judge.  This juror fined $1,000.  Fears she may lose her job.

Linkhttp://www.nydailynews.com/new-york/queens/exclusive-queens-juror-fined-facebook-blabbing-article-1.2421830

Conviction Reversed Where Judge Failed to Grant New Trial Motion When Juror Had Failed to Disclose Pending Felony Charges

A juror remained silent when voir dire questions were posed about having been charged with a crime.  When it was discovered that this juror had pending charges the defense moved for a new trial which the trial judge denied.  Appeals court reversed.

https://acis.alabama.gov/displaydocs.cfm?no=692999&event=4H50U23P3

Juror Jailed for 5 Days for Research During Trial

Here we go again!!!

 http://www.wrdw.com/home/headlines/Woman-jailed-5-days-for-looking-up-legal-issues-during-jury-duty-336058611.html

Celebrities Called to Jury Duty Should Not Criticize "the Boredom"

It's happening again this week.  A prominent reporter on one of the financial cable news networks is on social media expounding on the boredom of waiting at the courthouse to be called for jury duty.  He is to be praised for doing his civic duty.  But jury duty is not intended to be entertainment.  Everyone knows there is a lot of waiting even if you are selected to serve on a jury.  So bring a good book and several newspapers (yes, Millenials, some people actually read newspapers ON PAPER)  You may find the experience quite enlightening.  It's only a few days out of your busy lives.  Indeed some people have had their lives interrupted while they serve on active duty in the military in places like Afghanistan so you have the privilege of serving on a jury.  End of sermon.                                

That Juror Failed to Disclose Being Facebook Friends With Victim's Sister Did Not Result in Mistrial

On the Jur-E Bulletin of the National Center for State Courts it was suggested that judges define for jurors during voir dire what the court means when it says "friend" during jury selection.  It has a different connotation today than even 10 years ago.  Here the juror was a realtor and had a thousand "friends" on Facebook for networking purposes. 

http://www.in.gov/judiciary/opinions/pdf/09241502rp.pdf

Conviction Reversed After Juror Making Racial Comments Found to Have Implicit Bias

A juror told two other jurors that she saw 2 African-American men in her neighborhood and that such an occurrence was unusual and she thought a conspiracy related to the trial.  The other 2 jurors were sympathetic.  The trial judge failed to remove the juror from the case and the defendant was convicted.  Reversed on appeal.

http://www.judiciary.state.nj.us/opinions/a0211-12a3356-13.pdf

Juror in Murder Trial Causes Mistrial, Sentenced to Stayed 6-month Prison Sentence

Shouldn't it be self-evident that, as a juror, you don't hug the victim's family members prior to deliberations?
http://www.thestate.com/news/local/crime/article32102109.html

"Mindless Digital Interaction" Doesn't Result in Mistrial in Murder Trial

Check out the judge's comments about "mindless texting."
Continues to amaze me that jurors either don't listen to the judge's admonitions about using devices during trial or simply don't care.  And why are the trials mostly murder trials?  Perhaps the jurors are enjoying what they perceive is celebrity status.  Perhaps the father's text could result in a reversal on appeal.  Watch for more on this in the future.
Link:
http://www.abajournal.com/news/article/judge_blames_mindless_digital_interaction_for_juror_texts_during_murder_tri/

Grand Juror in NY Charged with Unlawful Grand Jury Disclosure

Grand juror discussed testimony and the result in a local store:

http://www.thedailymail.net/news/article_be4f9aec-456b-11e5-9300-bb47257496cc.html

Judges: Be Aware of a Possible Weak Link in Your Social Media Control Over Jurors

As a result of budget restraints some courts have little or no bailiff support.  Others may have bailiffs who have been poorly-trained or are inexperienced.  We judges need to be vigilant about the support staff interacting with jurors throughout the trial, particularly during deliberations.  There are many cases where bailiffs have given dictionaries or other resources to jurors during trial deliberations, resulting in mistrial.  Bailiffs must be trained to also be vigilant about jurors accessing electronic devices during trial.

One Misbehaving Juror Goes to Jail While Another is Fined $4000

One misbehaving juror goes to jail for keeping trial notes on his phone...http://www.journalnow.com/news/state_region/juror-sent-to-jail-for-days-for-using-cellphone/article_ecd979b4-6d2e-501c-a291-7583c96c5e64.html

...while another in Vermont is fined $4,000 for reading newspaper articles about the trial...

http://www.usatoday.com/story/news/nation/2015/06/14/trial-juror-who-read-newspaper-fined-4000/71233204/

Juror's Cell Phone Seized When Improper Discussion of Trial With Friends Alleged; also, the Lying Juror and the Flirtatious Juror

Here is the story about the seized cell phone:

http://www.syracuse.com/crime/index.ssf/2015/06/dr_neulander_juror_misconduct_hearing_delayed_until_original_sentencing_date.html

Here is the appellate opinion about the juror who was a pathological liar during voir dire. It is a long opinion but the transcript of voir dire starts at page 5:

http://www.ca2.uscourts.gov/decisions/isysquery/5d406a1a-c8be-4c52-abf9-0678ccaa8c58/1/doc/13-1388_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5d406a1a-c8be-4c52-abf9-0678ccaa8c58/1/hilite/

Finally, the flirtatious juror.  Flirting with a criminal defendant is unbelievable!

http://www.dailytelegraph.com.au/news/nsw/saucy-juror-gets-trial-aborted-by-flirting-with-defendant/story-fnpn118l-1227386434150

Retrial Ordered Where Juror Was a Felon and Juror Failed to Disclose

Felons not having had their rights restored may not serve on juries.  I have had felons report for jury duty and who failed to disclose a felony record.  Fortunately we have discovered it before they served on a jury.  If this is not discovered, a mistrial or retrial could be ordered as that juror is not qualified to serve.

http://www.wsmv.com/story/28895076/judge-declares-retrial-because-juror-was-convicted-felon

UK Makes Jurors' Online Research and Use of Social Media a Criminal Offense

http://www.scottishlegal.com/2015/04/15/england-new-criminal-offences-created-for-jurors-who-unlawfully-research-trials/

Russian Jurors Bribed

Yes, it's Russia.

http://rapsinews.com/judicial_news/20150310/273295964.html

Error for Trial Judge to Excuse Juror Not Felt Adequately Proficient in English

Here is the link to the Connecticut opinion:

http://www.jud.ct.gov/external/supapp/Cases/AROap/AP155/155AP164.pdf

No Error When Judge Discharged Foreperson Who Refused to Reasonably Participate in Deliberations & Introduced Extraneous Matters

Here is link to advanced opinion of Connecticut Supreme Court decision finding no error where trial judge excused the foreperson during deliberations:
http://jud.state.ct.us/external/supapp/Cases/AROcr/CR315/315CR12.pdf

A juror accused another juror (the foreperson) of refusing to speak with other jurors, sitting away from a table where the jury was assembled, and commenting that she was just there to observe. (How did this person become the foreperson???)  Eleven jurors confirmed in questioning by the judge that the foreperson was not participating in deliberations.  The foreperson had also speculated that witnesses were bribed, of which there was no evidence.

Juror Dismissed for Visiting Horse That was Subject of Trial

In an animal cruelty trial a juror visited a boarding facility where a horse that was the subject of the case was being boarded.  This was clearly a violation of the judge's instructions. The juror was dismissed but a mistrial was denied.

http://www.mysuncoast.com/news/local/juror-kicked-off-napier-case-after-visiting-rescued-horse/article_471d8da2-aafd-11e4-b1ad-5b6acbc913f4.html

Thought-provoking Article on Subconscious Bias

When judges ask the "magic question" during jury selection, can they be certain the juror can genuinely recognize their own subconscious biases and prejudices?

Linkhttp://www.slate.com/articles/news_and_politics/crime/2015/01/jury_selection_in_the_etan_patz_dark_knight_shooter_and_the_boston_marathon.single.html

NFL Player Tweets During Jury Service

At the link below you can read a series of tweets by Cardinals defensive end Darnell Dockett about his jury service, apparently intending to be excused from his civic duty.  Appears he never actually made it into the courtroom.

http://www.foxsports.com/buzzer/story/arizona-cardinals-darnell-dockett-live-tweets-jury-duty-120214

Really Bad Juror: Juror Commits Multiple Violations of Judge's Admonitions; Conviction Reversed But For Bias

In Iowa a juror committed multiple violations of the trial judge's instructions during criminal trial: failing to disclose relationships with victim's family during voir dire; Facebooking and researching defendant's age; speaking about case to others at a convenience store.  But on appeal most all the violations were determined insufficient for remand, however a finding of bias (acquaintanceship with victim's family) resulted in reversal and remand for new trial.

Link: https://www.courtlistener.com/opinion/2750822/state-of-iowa-v-tyler-james-webster/

So we have had movies "Bad Teacher" and "Bad Grandpa"...so how about Adam Sandler or Pauly Shore starring in "BAD JUROR" ?

Goodman Convicted in Retrial In Case Fraught With Juror Misconduct & Alleged $1 million Bribe

To update from my last post, John Goodman was convicted in a retrial of his criminal case in which there was a mistrial in the first trial due to juror misconduct. 

Link:  http://www.cbsnews.com/news/polo-mogul-convicted-again-in-deadly-palm-beach-dui/

The juror issues are multiple: juror Van Vliet's disclosure of prior trial; a juror sneaking a computer into his hotel room while sequestered; a juror accused of lying during voir dire.  Something tells me we haven't heard the last about this conviction.

Link: http://www.wptv.com/news/region-c-palm-beach-county/west-palm-beach/john-goodman-retria-more-goodman-juror-problems

A Vermont man is accused of offering up to $1 million for an acquittal:

Link:  http://www.palmbeachpost.com/news/news/crime-law/report-man-wanted-at-least-500000-to-sway-goodman-/nh3xz/

Juror Who is Criminal Justice Student Arrested for Contempt for Googling Trial

AH, the youth of today.  So inquisitive, so interested, so unwilling to follow rules at times.   Here is link to the story.  Juror-student age 23 defies judge's instructions and Googles the case, dsicovering its a retrial and shares that information with his fellow jurors.  Of course, he makes it on the news!  His fifteen minutes of fame.  Also a bad mug shot.
http://www.sun-sentinel.com/local/palm-beach/fl-goodman-juror-contempt-20141009-story.html

Grand Jury in Ferguson MO Police Shooting Being Investigated for Misconduct

Many news sources are reporting that prosecutors are investigating whether a grand juror hearing the Ferguson MO police shooting has discussed the case with members of the public, a clear violation of the grand juror oath of secrecy.  I am not providing a link.  You should be able to find more information on CNN and other news sources.

Bailiff Behaving Badly?

Bailiff's comments to jury that rendered an acquittal are under investigation:

http://courtnet/NewsClippingItemDisplay.aspx?item=60140

Second Reversal in a Month by CA Supreme Court Due to Juror Misconduct

The California Supreme Court reversed a murder conviction in a case where a juror was lobbying other jurors prior to deliberations that the defendant was guilty.  The Court stated "...the (juror's) transformation from impartial fact finder to combative advocate before deliberations began is separate and serious misconduct."  People v. Weatherton.

Link to opinion:  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCAQFjAA&url=http%3A%2F%2Fwww.courts.ca.gov%2Fopinions%2Fdocuments%2FS106489.PDF&ei=7qvzU6WMK4-0yATOy4GIDA&usg=AFQjCNEOT_Iusu8tpmQPyre6hxchQi5SRg&sig2=56I5Z9rkvrdOeBeVKLawJg

The opinion is instructive to judges as it discusses the post-trial hearing conducted by the trial judge, including conflicts attorneys and "Miranda"-style warnings to the jurors questioned about their alleged misconduct and violation of their oath.

Juror's Discussion With Pastor About Mercy, Empathy & Responsibilites as a Citizen Results in Overturned Verdict in Penalty Phase

During deliberations of the penalty phase a juror discussed "mercy and empathy" and his duties as a citizen with his pastor (starts at p. 37 of this 55 page opinion) but not the facts of the case.  The Supreme Court of California reversed the jury verdict in the penalty phase and remanded it to the trial court for a new trial of the penalty phase.
LINK:  http://www.courts.ca.gov/opinions/documents/S050102.PDF