Thaddeus Hoffmeister 10 Most Significant Jury Related State and Federal Cases of 2009-2010

Thaddeus Hoffmeisterwww.juries.typepad.com

10 Most Significant Jury Related State and Federal

Cases of 2009-2010

http://www.juries.typepad.com/

2

Table of Contents United States Supreme Court:

Thaler v. Haynes – Peremptory challenges Presley v. Georgia – 6th Amendment right to public voir

dire Berghuis v. Smith – Cross section of jurors Skilling v. United States – Pre-trial publicity Clyma v. Sunoco (10th Cir.) – Obtaining juror information

State Supreme Court:

State v. Speer (Ohio) – Jurors with disabilities Stephens Media v. District Court (Nevada) –

Disclosure of juror questionnaires State v. Rhone (Washington) – Peremptory challenges Duffy v. Vogel (New York) – Jury polling Russo et al. v. Takata (South Dakota) – Juror conducting

research

3

Thaler v. Haynes130 S. Ct. 1171

Background: Death Penalty case where two different judges

presided over the voir dire Defendant was denied Batson challenge to

prosecutor’s peremptory strike Defendant argued that pursuant to Batson and

Snyder, judge could not deny Batson challenge because he was unable to personally observe demeanor of juror

Trial Court allowed strike – defendant convicted

5th Circuit overruled pursuant to Snyder and Batson

4

5th Cir. – Judge must reject demeanor-based explanation unless judge personally observed prospective juror’s demeanor Batson – requires a judge ruling on an objection to

a peremptory challenge to “undertake ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’”

Snyder – Expansion of Batson: “Under Batson... an appellate court should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror's demeanor upon which the prosecutor based his or her peremptory challenge.”


5

Issue: Pursuant to Batson and Snyder, is there clearly established law which requires a judge to personally observe the demeanor of a juror when ruling on a demeanor-based peremptory challenge?

Holding: NO No Supreme Court case establishes that a

judge must reject a demeanor-based explanation absent first-hand observations of the juror being stricken

Reversed and Remanded (per curiam opinion)


6

Presley v. Georgia 130 S. Ct. 721 (2010)

Background: Defendant’s uncle was asked to leave

the court room at the start of voir dire Defendant appealed his conviction

arguing his 6th Amendment right to a public trial was violated as his voir dire was closed to the public

7


Issue: Does the defendant’s 6th Amendment

right to a public trial extend to voir dire?

8

Holding: YES Press-Enterprise I and Waller hold that the 6th

Amendment provides for voir dire to be open to the public absent special circumstances

Defendant not required to provide court with alternatives to accommodating the public

Court did not rule on issue of whether the lower court had an overriding interest in closing voir dire to public

Reversed and Remanded


9


Dissent: (Thomas and Scalia) Court’s conclusion decides by implication an

unstated premise – voir dire is part of the public trial

Issue not previously decided by Court - Press-Enterprise I and Waller do not explicitly answer the question presented

Unwilling to decide issue summarily without benefit of briefing

Neither Press-Enterprise I nor Waller places a burden on the courts to act sua sponte suggesting alternatives to closed proceedings – does not definitely express who must suggest alternatives

10

Background: In 1993, an all-white jury in Kent

County, Michigan convicted Diapolis Smith – an African American – of second degree murder

Habeas petition arising from the 6th Circuit

Berghuis examines 6th Circuit’s application of Taylor v. Louisiana and Duren v. Missouri

Berghuis v. Smith129 S. Ct. 2160

11

Issue: Did 6th Cir. err by concluding Mich. Sup.

Ct. failed to apply clearly established law when it rejected Smith’s 6th Amendment fair cross-section claim?

Did 6th Cir. err by applying comparative-disparity test?


12

Duren Test 3 prongs: (1) group is ‘distinctive’; (2)

representation of group is not fair and reasonable in relation to the community; (3) underrepresentation is due to systematic exclusion

Comparative-Disparity Test Court calculates percentage of otherwise

eligible jurors from given group who are excluded from jury service

Absolute-Disparity Test Compares the number of excluded potential

jurors to the overall population


13

Venire panel included 60 – 100 people At most 3 were African American Grand Rapids made up 37% of Kent County

85% of Grand Rapids is African American Absolute Disparity

6% (African Americans in jury pool) - 7.28% (African Americans in jury-eligible population) = disparity of 1.28%

African Americans underrepresented by 1.28% Comparative Disparity

Absolute Disparity (1.28%) / Eligible jury population (7.28) = 18%

African Americans 18% less likely to be on jury service list


14

Holding: Michigan Supreme Court’s rejection of

constitutional challenge to jury panel being unfair cross section of community was a “[r]easonable application of clearly established Federal law”

S. Ct. did not establish particular test to determine if a defendant’s Constitutional right is violated by a fair cross section of the community Tests are "imperfect" and can be misleading

when viewed alone Reversed and Remanded


15

Background: Following an employment

discrimination dispute between Clyma and Sunoco, Oklahoma Employment Lawyers Association (OELA) submitted “Application for Permission to Interview Jurors for Instructional Purposes”

OELA sought to contact jurors for the purpose of educating members of the bar regarding jury dynamics of employment law cases

Clyma v. Sunoco594 F. 3d 777

16

Issue: Whether the First Amendment requires

that attorneys who did not participate in the underlying litigation be given access to jurors to assist them in the preparation of an educational program for the use and benefit of members of a professional organization?


17

Holding: 10th Circuit granted a limited writ of mandamus

remanding the proceeding to the District Court The District Court denied OELA’s request for

several reasons: OELA’s First Amendment rights are severely

outweighed by the privacy rights of jurors The information was being gathered for educational

purposes – not news gathering, which carries weighty First Amendment concerns

Courts disfavor attorney contact with jurors post trial because of the need to: “(1) avoid harassment of jurors, thereby encouraging freedom of discussion in the jury room; (2) reduce the number of meritless post-trial motions; (3) eliminate a significant source of jury tampering; and (4) increase the certainty of verdicts”


18

Background: Texas federal district court convicted

Jeffrey Skilling of conspiracy, securities fraud, making false representations to auditors, and insider trading. Mr. Skilling was the former C.E.O. of Enron Corp.

Appeal arising from the 5th Circuit S. Ct. will determine whether, and to what

extent, Skilling was prejudiced by the widespread media attention given to the Enron scandal

Skilling v. United States No. 08-1394

19


Individual Voir Dire (Attorney and Judge Conducted)

--14 page questionnaire sent to 400 prospective jurors; 283 responded and 119 excused based on questionnaire

--Not all jurors questioned by Defense Counsel Length--Jeffrey Skilling 5 hours--Timothy McVeigh 18 Days--Zacarias Mousssaoui 14 Days--Dennis Kozlowski (former CEO of Tyco) 7 Days

20


Issue: When jury prejudice arises due to

widespread media publicity, must the defendant show actual rather than presumed prejudice and may the government rebut the presumption of prejudice?

If rebuttable, what is the standard that no juror was actually prejudiced: Beyond a Reasonable Doubt or Preponderance of Evidence?

Holding: To be determined

21

Background: Speer faced various homicide charges Defense counsel attempted to excuse

prospective juror for cause due to a hearing impairment – motion denied

Defense counsel proceeded to exercise all four allotted peremptory challenges – did not exercise peremptory challenge on hearing impaired juror

Hearing impaired juror was selected Speer was convicted

State v. Speer (OH)925 N.E.2d 584

22

Trial: During voir dire, the hearing impaired

prospective juror indicated she reads lips At the trial, the 911 call was played for the

jury – Hearing-impaired juror read the court reporter’s real-time transcript of the recording Both prosecution and defense relied upon

Defendant’s voice tone and demeanor as evidence of his guilt/innocence

Appellate Court found the trial court abused its discretion by sitting the juror and reversed


23

Issue: Did the appellate court correctly find

that the trial court abused its discretion by denying Speer’s challenge of the prospective juror for cause due to her hearing impairment?


24

Holding: NO Balance public interest in equal access to jury

service against the right of the accused to a fair trial Latter is the predominant concern of the court

Right to fair trial requires jurors to understand all evidence presented at trial

Hearing impairment alone does not render prospective juror incompetent; however, when accommodations fail to enable a juror to perceive/evaluate evidence, Defendant is deprived of fair trial

Reversed. Trial Court opinion correct.


25

What to do when this situation arises again: Court must determine, in light of the

specific evidence to be presented, whether any reasonable and effective accommodation can be made to enable the juror to serve

When no such accommodation exists, the court must excuse the juror for cause


26

Dissent: During voir dire, juror was asked about hearing-

impairment and informed court she can augment hearing with lip reading; thus, her handicap would not inhibit her ability to perceive and evaluate evidence

Accommodations were made: placing juror closer to the witnesses During 911 tape – juror read the court reporter’s

transcript Defense counsel did not raise concern about

juror being able to interpret voice inflections, rather, only that juror is unable to hear all of the evidence


27

Background: Due to celebrity status of O.J. Simpson and Charles

Stewart, court ordered Decorum Order for press Judge promised jurors that questionnaires would

not be released Press sought modification to Decorum Order,

seeking copies of blank juror questionnaires and those completed of jurors ultimately selected – Dist. Ct. denied request

After jury was seated, court allowed access to blank juror questionnaires; following an extraordinary writ, court ultimately permitted access to versions of completed jury questionnaires with redactions

Stephens Media v. District Court (NV)221 P.3d. 1240

28

Issue: Whether juror questionnaires used in jury

selection are subject to public disclosure? Issue is an exception to the mootness doctrine

applied because the issue was capable of repetition


29

Holding: Yes – 1st Amendment qualifies right by

creating a presumption of openness that “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Standard derived from Press Enterprise II


30

State v. Rhone (WA)229 P. 3d 752

Background: Rhone, an African American, was charged with 1st

degree robbery, drug and gun possession, and bail-jumping

Of 41 jurors available, two were African American – one was stricken for cause and the other was removed later by the prosecutor’s peremptory challenge

Rhone challenges the constitutionality of the removal of the last African American juror, claiming it is, on its face, discriminatory

Trial Court found that prosecutor’s removal of the last African American venire member did not establish a prima facie case of purposeful discrimination

31

Issue: Did the trial court err by ruling that the

prosecutor's removal of the last African-American venire member failed to establish a prima facie case of discrimination in violation of Batson?


32

Batson standard: 3-part analysis Defendant must provide evidence of any

relevant circumstances that “raise an inference” that peremptory challenge was used to exclude a venire member from the jury on account of the venire member's race

Burden shifts to prosecutor to come forward with a race-neutral explanation for challenging the venire member

Court determines whether the defendant has established purposeful discrimination


33

Holding: No. Trial court applied correct standard of review under

Batson and trial court's determination that Rhone failed to establish a prima facie case of discrimination was not clearly erroneous Court rejected Rhone’s contention that a bright-line rule

establishing a prima facie case of discrimination exists whenever a prosecutor peremptorily challenges a venire member who is the last remaining member of a racially cognizable group

Rhone failed to raise any circumstances evincing evidence of discrimination – rather he only points out that there are no African American members on the jury

Affirmed


34

Dissent Court should adopt bright line rule that a defendant

establishes a prima facie case of discrimination when, as here, the record shows that the State exercised a peremptory challenge against the sole remaining venire member of the defendant's constitutionally cognizable racial group Benefits of bright-line rule outweigh burden of State

explaining non-discriminatory reason for dismissal of juror After Batson, it is unnecessary for a trial court to

consider whether jury selection process involves systemic exclusion of venire members based on a discriminatory purpose – a single invidiously discriminatory governmental act is sufficient


35

Is this holding problematic? The Justices of the WA Supreme Court were

deadlocked, however, the Chief Justice, cast her vote for the majority in a concurring opinion in which she agreed with the dissenting opinion, however, because the new rule only applies prospectively and not retroactively, it does not affect Mr. Rhone


36

Background: Following a jury trial in a medical malpractice

suit, plaintiff requested (but was denied) that the jury be polled to ascertain whether each juror consented to the verdict as read by the foreperson

Each juror signed an 11-page verdict sheet containing 21 interrogatories; the jury’s response to the interrogatories had been unanimous, and during the foreperson’s recitation of the verdict in open court, no juror cried out in protest

Duffy v. Vogel (NY)2009 NY Slip Op 2448

37

Issue: Is the denial of polling jurors following a jury

trial harmless error permitting the verdict to be upheld?


38

Holding: No. Right to a jury polling is absolute The request for a jury poll is a necessary

condition of a ‘finished or perfected’ verdict It is not sensible to expect that a juror, absent

polling by the judge, would in open court spontaneously pipe up his or her disagreement with an announced verdict

Harmless error analysis would be speculative - no court, may claim to know each juror's conscience

Reversed – New trial granted


39

Dissent: The “absolute” nature of the right does not

imply that the denial of the right can never be harmless error

The assertion that, where a request for a jury poll is not honored, the verdict is not “finished or perfected” is an abstraction – if logically followed through, a jury poll would be required, whether requested, or not

The possibility that a verdict would be upset by a jury poll is rare

Many errors found harmless where the chance that the error determined the result was significantly greater than it is in this case


40

Background: Wrongful death action brought against Takata –

seatbelt manufacturer for GM After receiving summons, prospective juror (Flynn)

conducted Google search to gather information regarding how many lawsuits had been brought against Takata

During voir dire, it was not revealed that Flynn had conducted outside research beforehand – subsequently, he was selected to serve on the jury

During deliberations Flynn conveyed his internet findings to 5 other jurors

New trial was granted due to juror misconduct

Russo, et al. v. Takata (SD)2009 SD 83

41

Questions asked to jurors: Russo’s counsel asked jurors extensively about their

knowledge of the Russos, whether they were acquainted with the family, and how

Russo’s counsel asked Flynn (juror conducting research) if any questions posed to other prospective jurors caused him to want to disclose anything

Takata’s counsel also questioned the panel extensively about past and current relationships with and knowledge of Takata “Okay, before you got here this morning, had anyone

ever heard of Takata?” (Flynn did not respond) “Is there anything that we haven’t asked you about that

you think is important for us to know or important for the Plaintiffs to know about you and the way that you’re approaching your job potentially as a juror in this case?”

Russo, et. al v. Takata (SD)2009 SD 83

42

Issue: Does a remark made by a juror during

deliberations based on information that juror knew before jury selection and could have been ascertained by reasonable voir dire constitute “extraneous information” upon which a trial court can set aside a verdict?

Whether a rebuttable presumption of prejudice is created in a civil trial when extraneous information is brought to the jury's attention?

Whether a juror's remarks prejudiced the jury's verdict against the Plaintiffs?


43

Holding: Court found evidence extrinsic in nature as Flynn sought

out information in response to the summons Extrinsic evidence was relevant to facts in issue – whether

Takata had notice of defective seatbelts Party seeking to overturn verdict must show it was

prejudiced by jury misconduct (Buisker v. Thuringer) – proper test

Prejudice was possible – though conversation lasted only between 3-5 minutes, information was available to 6 jurors for 90 minutes of deliberations – a typical/normal juror could have been influenced given that statement directly contradicted evidence given at trial

Affirmed


10 Most Significant Jury Related State and

Federal Cases of 2009-2010

Questions

Documents

Thaddeus Hoffmeister 10 Most Significant Jury Related State and Federal Cases of 2009-2010