Anonymous juries: a troubling development

Earlier this month, New York City attorney Bobbi C. Sternheim filed court papers on behalf of her client, Minh Quang Pham, urging the judge to reject the government’s demands for an anonymous jury. Pham, who was extradited to the U.S. from London in March, faces charges of providing material support to al-Qaida by assisting in the editing and distribution of propaganda used by al-Qaida to recruit disenchanted individuals from western cultures. As Yahoo News reported:

In opposing an anonymous jury for Pham’s Feb. 1 trial, Sternheim said anonymity impairs a defendant’s presumption of innocence, threatens judicial integrity and disrupts the ability of lawyers to investigate jurors for bias. She said anonymity signals jurors that the defendant is “very dangerous.”

Leroy “Nicky” Barnes on the cover of New York Times Magazine, 1977

Anonymous juries, relative to the history of jurisprudence, are a fairly recent phenomena. The term refers to jurors whose identities are kept completely secret from both the public and the defendant. Anonymity has been invoked in cases where a substantial danger could potentially fall upon the individual jury member were she to decide her vote in a particular way. For instance, an anonymous jury was formed in the 1977 trial of drug kingpin Leroy Barnes, on the grounds of New York City’s extensive history of jury and witness tampering in large-scale New York drug prosecutions. The trial court assigned to the case concluded that “all safety measures possible should be taken for the protection of prospective jurors, including complete anonymity, namely, no disclosure of name or address.”

Case such as this, in which the safety of jurors’ lives may be in question, merit consideration of anonymity. Nevertheless, as reported by the Reporters’ Committee for Freedom of the Press,”most federal and state appellate courts which have addressed this issue have recognized a qualified First Amendment right to juror names and addresses.” Indeed, in the case of U.S. v Ross, The 11th Circuit U.S. Court of Appeals in Atlanta called the use of anonymous juries:

“a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances.”

In a political climate rife with fear, the potential rise in anonymous juries is troubling. Granting anonymity, as Sternheim implied, can muddle the concept of a jury of peers and can create bias against defendants. For what it’s worth, legal scholarship on the question remains divided. Some writers have argued for the routine use of anonymous juries, or even claimed that no First Amendment right exists to an identified jury. Others have warned that unregulated uses of anonymous undermines the right of the accused.

Pham, 32, plead guilty to charges of providing material support to terrorists and faces at least 30-years in federal prison

These warnings, it appears, have gone largely unheard: according to Sternheim, “What should be a last resort is now a standard tactical weapon used by the prosecution.” Since the Yahoo News article was published, Pham subsequently pled guilty prior to trial, and faces a minimum of 30 years in federal prison. He is to be sentenced on April 14th.

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The problem of skewed jury demographics

NYPD Officer Peter Liang is facing trial after being accused of recklessly shooting Akai Gurley in a dimly-lit stairwell in East New York on November 20th, 2015. Gurley, a 28-year old father, was taking the stairs to his apartment where Officer Liang claims he accidentally shot him. Gurley, an African-American, was unarmed. His death adds to the ever-growing count of unarmed minorities killed at the hands of police officers in
2015. According to the organization Mapping Police Violence, “unarmed black people were killed at 5x the rate of unarmed whites in 2015.” Liang, if convicted, faces up to 15 years in prison for manslaughter. It should be noted that Officer Liang is of Asian-American dissent, and thus makes this case unique relative to well-known cases of police brutality.

Akai Gurley was shot and killed in 2014 in a dimly lit stairwell in Brooklyn.

Akai Gurley, 28, was fatally shot in 2014

The case, however, is most intriguing in that, of the seven men and five women chosen as jurors, only one was African-American, with eight appearing to be Caucasian and three Latino. This poses questions regarding the way juries are chosen through voir dire and whether that adequately addresses both potential juror bias and the goal of forming a jury of one’s peers. Assembling a jury of one’s peers is an imperfect art, and as the NY Daily News reported,

Officer Peter Liang, who admitted to shooting Akai Gurley, was "incoherent" after the shooting.

Officer Peter Liang faces charges of manslaughter

 

It’s unclear if having fewer minorities on the panel was the result of a strategy by the defense or prosecutors in the racially charged case. According to the most recent U.S. Census information, 35.8% of Brooklynites are white, 35.2% are black and 19.5% are Hispanic.

The skewed racial composition of the jury could bias the jury deliberation, as some evidence (such as a  was found in a 2006 Journal of Personality and Social Psychology study) suggests diverse juries deliberate more carefully. Moreover, a  2006 meta-analysis in Behavioral Sciences & the Law showed that a defendant’s race can influence juror sentencing decisions. Even if the jury deliberates carefully, however, a skewed jury still can create a public perception of bias (numerous examples exist, such as this reaction to a 2014 trial in Benton Harbor).

Opening statements are expected Monday.

[Editorial note: This post was the first from Ethan Paul, a student at Penn State who is helping with the blog in Spring 2016.]

Posted in Deliberation on juries, Public/media views of juries, Verdicts juries reach, Voir dire and jury selection | Leave a comment

Florida Supreme Court affirms the power of the jury

jurygenericLast week, the U.S. Supreme Court helped secure the power of the jury in the U.S. by requiring Florida courts to give juries, and juries alone, the power to judge the key facts in death penalty cases. Previously, juries’ findings were advisory to judges, and the Supreme Court said that this wasn’t sufficient, given the powers the jury holds in the Constitution.

As reported in the New York Times,

The decision in Hurst v. Florida, No. 14-7505, concerned Timothy Lee Hurst, who was convicted of the 1998 murder of Cynthia Lee Harrison, a co-worker at a restaurant in Escambia County. He was sentenced to death in 2000. After the Florida Supreme Court ordered Mr. Hurst resentenced, a second jury recommended a death sentence by a 7-to-5 vote in 2012. The judge then independently considered the evidence concerning punishment and concluded that Mr. Hurst should be executed. That procedure was unconstitutional, Justice Sonia Sotomayor wrote for seven justices in the new decision. “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” she wrote. “A jury’s mere recommendation is not enough.”

Those interested in reading the full opinion, can find it here.

Not everyone is thrilled by the Supreme Court’s ruling. An op-ed in the Tallahassee Democrat, for instance, frets about how the legislature can make sure this ruling doesn’t delay or overturn pending death penalty findings. One would think due process would be their first concern, but one would (perhaps) be wrong.

 

 

 

 

Posted in Jury structure and reform, Public/media views of juries, Social/political impact of juries, Verdicts juries reach | Leave a comment

Donald Trump at Jury Duty

There’s no real point to this post, other than including this wonderful photo of a Presidential candidate reporting for jury duty, thanks to a Tweet of him in Manhattan’s courthouse:

TrumpAtJuryDuty

There’s more than one article about the event, such as a nifty USA Today story that gets to how Trump got a fine waived for failing to appear previously when summoned.

And no, in the end he wasn’t seated on a jury. One of the fellow prospective jurors noted that Trump “seemed in deep thought about his campaign. He’s a nice guy, a funny guy. He seemed pretty bored like the rest of us.” This is just one more example of how one of the richest men in the world is running an effective campaign as an “everyman,” a personable fellow with rough edges who just happens to have struck it rich through grit and good fortune.

All analysis aside, the pursed lips in the photo are classic Trump. So classy!

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Jury Duty as a Patriotic Act

On the eve of America’s Independence Day (July 4), legal scholar Andrew Ferguson has a new op-ed about jury duty, which plays up its potential role as “the most American thing you can do.” At CNN.com, Ferguson explains that “serving as a juror not only embodies political, civic, and community participation, but is a unifying act of American pride.”

FergusonFerguson, the author of “Why Jury Duty Matters,” doesn’t hold back when belting out his song of praise for the jury:

Go to any trial courtroom, be it a preserved replica in Colonial Williamsburg or the most modern federal courthouse and you will see the same seats built into the structure of the courtroom, and, thus, the court system. Every year since the founding, those seats have been filled by people asked to swear the same type of oath, listen to the same types of evidence, and make the same hard decisions — together.

The ritual of jury duty has repeated daily in courtrooms across America, linking citizens in big cities and small towns, conservative and progressives, and everyone in between.

For some, that may be too much to take–given the unjust verdicts juries have reached, the exclusion of women and minorities for much of its history, and so on. It bears repeating, though, that juries have often been a positive force for social change, such as when they have expressed public outrage on civil trials of polluting corporations or refused to convict on grounds of conscience.

Even when constrained by the biases and ignorance of a given moment in history, the jury still held out the promise of a legal system in which lay citizens had a voice. The fulfillment of that promise in the modern jury is a feature of American democracy many nations, from Argentina to South Korea, have sought to emulate. To that extent, Ferguson’s song of the jury rings true.

Posted in Deliberation on juries, Juries around the world, Public/media views of juries | Leave a comment

First jury trial in Argentina wastes no time in setting precedent with “not guilty” verdict

New jury Argentina jurysystems are emerging in different parts of the world, and while some have been reluctant to hand out “not guilty” verdicts (I’m looking at you, Japan), the new jury process in Buenos Aires reached such a decision at the close of that city’s first jury trial.

The details on that case are relayed by FoxNews-Latino, which provides an English-language summary of the case. The research we conducted found that most American jurors experience strong emotions during trials, and the Buenos Aires jury had the same reaction:

The presiding judge’s voice broke with emotion many times on Thursday, and some members of the 12 person jury cried when they saw the relatives of the defendant crying when they heard the verdict.

Colleagues in Argentina who study the jury also felt overcome with emotion, as they relayed in emails to me this past week. The emotion reflected both the gravity of the trial and the historic nature of the jury. Argentina’s constitution has always made possible jury trials, but their arrival has come only in the past two years. That this one was in Buenos Aires made it special.

For a full accounting of the trial, a concise report has been compiled by AAJJ–an organization that promotes jury trials in Argentina.

One last detail: Take a look at the picture of the jurors posing with the judge in the jury box. Notice anything that would not appear in a U.S. courtroom? Can’t find it? Look at the wall behind the jurors.

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Why the Supreme Court reaffirmed the sanctity of jury deliberations

Open meeting norms and “sunshine” laws help ensure that the public can know what’s happening when government officials meet. But what about when lay citizens are the government? When a jury deliberates together, it does so in private. Why the difference?

The best argument I’ve seen is was made by the former federal judge, William Dwyer. His book, In the Hands of the People, traces juries back through history to conclude that the jury serves as much a sacred and symbolic role as a bureaucratic and judicial one. In this view, the gathering of a jury bears some resemblance to the gathering of cardinals to decide on the next pope: Their decision must be final, so it’s best not to know what went on in the room.

For the same reason, Dwyer was no fan of post-trial interviews with jurors. When their verdict is read, their service should be done. Appeals of their criminal verdict (or judgments in a civil case) may overturn the jury’s findings, but not based on sifting through its deliberations.

Earlier this month, the U.S. Supreme Court quietly affirmed this view of the jury. As the New York Times reported, Justice Sonia Sotomayor

said that courts had taken differing approaches to the sanctity of jury deliberations but that Congress had instructed federal courts to bar the use of almost all evidence from jury deliberations, with very narrow exceptions.

There are exceptions to this principle. Rule 606 of the Federal Rules of Evidence specifies those exceptions, which conjure up images of jury deliberations gone horribly wrong. Under this rule,

A juror may testify about whether: (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

Notice that those exceptions aren’t about the dynamics of the jury’s deliberation.Rather, they’re about the introduction of contaminants–evidence or influence from “outside” the trial (or, in the third case, an error on the proverbial scorecard).

The bottom line is that Congress and the Supreme Court agree that juries are meant to do their work in private. Jurors are not elected officials whose public deliberation might signal their competence (or the inverse); instead, they are private citizens called into public duty and who perform that role (generally) quite well in a system that protects them from the glare of cameras. Jurors continue to remain outside the spotlight, even in an age of sensationalism and CourtTV. That is how it should be.

Posted in Conducting trials, Deliberation on juries | 2 Comments