Listen to jurors excuse themselves during voir dire in the Martin Shkreli case

The voir dire stage of the trial can help the court find a jury willing to hear a case without prejudice. Much discussion of this phase focuses on how and attorneys remove jurors to craft what each side thinks is the most favorable jury. Voir dire, however, also gives potential jurors the chance to acknowledge their own biases and, essentially, recuse themselves. In such cases, the judge can remove a juror and spare the attorneys the use of peremptory challenges. Skeptics might doubt that prospective jurors would pass up the chance to act on their own biases, but this happens with some regularity.

The good people at Harpers provide a delightful example from the recent trial of Martin Shkreli, which resulted in a conviction. First, Harpers provides context:

[Shkreli was] an investor and hedge fund founder who is facing eight counts of securities and wire fraud. In 2015, when Shkreli was CEO of Turing Pharmaceuticals, the company raised the price of its drug Daraprim by 5,000 percent. In 2016, Shkreli was widely criticized for defending the 400 percent increase in the price of EpiPen, an emergency allergy injection sold by Mylan.

In the end, more than two-hundred prospective jurors were excused, and here’s an example of why the judge asked so many to leave during voir dire.

Judge: The purpose of jury selection is to ensure fairness and impartiality in this case. If you think that you could not be fair and impartial, it is your duty to tell me. All right. Juror #1.

Juror #1: I’m aware of the defendant and I hate him.

Defense Attorney: I’m sorry.

Juror #1: I think he’s a greedy little man.

Judge: Jurors are obligated to decide the case based only on the evidence. Do you agree?

Juror #1: I don’t know if I could. I wouldn’t want me on this jury.

Judge: Juror #1 is excused.

It only gets better. Read on for more stories of prospective jurors throwing shade on a shady defendant these citizens knew they couldn’t judge impartially.


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

The implications of Pena-Rodriguez v. Colorado: Two competing perspectives

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

The Civil Jury Project at the NYU School of Law seeks to examine and explain the causes and consequences of the rapid decline in the use of the jury in civil trials. It just released its April 2017 newsletter, which contains three guest op-eds–two of which speak on the implications that the recent Pena-Rodriguez v. Colorado ruling could have for the civil jury system. The opinion, issued on March 6 on a 5-3 vote, found that it was constitutional for jurors to be impeached in criminal cases if compelling evidence shows that racial animus was a significant motivating factor in their decision.

In the first article (“Did the Supreme Court Open a Pandora’s Box on Jury Discrimination?“), University of Texas-Austin professor Jeffrey Abramson argues that the Supreme Court has been historically reluctant to regulate the behavior of jurors based on charges of ineptitude or poor judgement, even when those jurors were potentially under the influence of drugs or alcohol. Nevertheless, “the Supreme Court reacted differently, and correctly,” in the Pena-Rodriquez ruling.

As opposed to the occasional misconduct of rogue jurors using drugs during a trial, anyone familiar with the history of the America[n] jury know that racial bias is a familiar and recurring evil. Any rule of tradition that keep courts from protecting jury trials from racial prejudice would make a mockery of the Constitution’s guarantee of trial before an impartial jury.

Abramson argues that the ruling will not necessarily expose jury deliberations to routine judicial inspections (the “Pandora’s Box” dissenters fear it will open). The opinion was limited to cases of overt or explicit bias, as well as to bias that only invoked racial or ethnic prejudice. In so doing, the court is seeking to “preserve our general faith in the jury system while dealing with the particularly egregious effects of race on the administration of justice… a hard combination to pull off [successfully].”

The second article, titled “Democracy, Citizenship, and the Pena-Rodriguez Caseand written by New Jersey Institute of Technology professor (and co-author of The Jury and Democracy) E. Pierre Deess, takes an opposing stance. Deess believes that not only will this decision open the aforementioned “Pandora’s Box” by not “offer[ing] strong principles limiting the decision to racial bias,” but jurors may struggle to conduct open and unregulated deliberation. Under a fear of expressing objectionable views, jurors will sometimes fail to scrutinize and evaluate the facts as they have been presented:

Entrusting power to citizens comes at a cost… With this decision, jurors– ordinary people–must police their words even in the heat of argument or the decision of the jury can be overturned… We cannot invoke some greater authority to set aside the decisions of an electorate or a jury because faith in the people is the final consequence of democracy.

The last article, titled “The Expressive Function of the Jury” and written by University of Connecticut School of Law professor Alexandra D. Lahav, does not deal with the Pena-Rodriguez ruling, but touches on some of the points made by Deess. In her book In Praise of Litigationshe argues that the jury is a cornerstone of democracy, as its very existence “expresses a societal belief that citizens are sufficiently educated and thoughtful to decide the fate of their fellow citizens.”

Moreover, jury service also offers a more robust form of participation than mere voting as “it requires deliberation,” while also providing a forum through which that deliberation can effectively negate the flaws of a democratic society, such as deeply-held racial animus:

It is precisely in encouraging deliberation, consensus and recognizing different points of view that the jury is so important to democracy. Instead of being a threat to expertise, virtuous elites, and professional homogeneity, the jury can be understood as a welcome complement.


Posted in Deliberation on juries, Jury structure and reform | Leave a comment

Sonia Sotomayor Reflects on Civil Jury Trials, Arguing They are Uniquely Empowering, Unifying, and Just

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

As the Senate considers the qualifications of a new prospective Supreme Court justice (after the GOP stonewalled Obama’s final nominee), we’re looking back a year to when NYU’s Civil Jury Project held a discussion with Supreme Court Associate Justice Sonia Sotomayor. On February 8, 2016, the Project held a forum titled, “Will Juries Go the Way of Powdered Wigs? The Seventh Amendment and the Modern World.”

Sotomayor_and_SussmanThe Civil Jury Project launched that same year to examine the causes and consequences of the rapid decline in the use of of jury trials in civil cases, as well as what solutions might begin to mitigate those effects. Justice Sotomayor is uniquely qualified to talk on the subject, as she is the only member of the Supreme Court who has both presided over a civil jury trial and conducted one as a trial lawyer. The conversation was led by trial lawyer Stephen Susman, who was heralded as one of the nation’s Top 10 litigators by the National Law Journal in 2006, among other accolades.

Justice Sotomayor began the talk by describing jury service and voting as two aspects of American citizenship and democracy that are uniquely empowering relative to all others. Jury service, she explained, is

“the one responsibility of citizenship that no one else can actually do… everybody pays taxes whether you’re a citizen or not, people serve in the military whether they’re citizens or not… but this is the one activity where you’re asked to serve and actually come to a decision on the behalf of the society that we represent.”

Furthermore, the process of deliberating and engaging over issues often of extreme consequence for the lives of fellow community members can bring otherwise socially disparate and separate individuals together:

“You talk to jurors, many of them become friends… there is something about that process that is both engaging and self-fulfilling. To be a responsible person, to come to a decision after you’ve looked at all sides of an issue… we often don’t make decisions that way… and this is a way of forcing people to think about how useful that collaborative effort can be.”

The conversation then moved toward the decline in civil jury trials; for some context, in 1990 there were 4765 civil trials, whereas in 2015 there were only 1882 civil jury trials, a decline of 60.5%. Justice Sotomayor argued that the reason to lament the decline could best be derived from an understanding of why the founding fathers had a desire to protect the civil jury system in the first place:

“Read about the seventh amendment, and read about what motivated our founding fathers to think that it was an important protection of a sense of liberty… I think that they understood, and I think we should understand, that the jury is the front line of protecting the society and its liberties.”

She also argued that juries can often reach decisions that are overwhelmingly more just and in the community’s interest, but which otherwise would not be reached. She made this point while discussing the relatively-unknown power of “jury nullification,” the history and importance of which we touched on in a November blog post here:

“Think about what juries did during the Civil Rights movement. If it weren’t for jury nullification, we would have many civil rights individuals who would be convicted felons, or otherwise, for things that today we think are protected by the first amendment.”

In the last segment of the talk, the discussion moved to how the civil jury process could be revitalized . Susman asked if jury selection could occur over the Internet, rather than through a process that forces potential jurors to spend one or two days in the courthouse:

“I think what that misses is the dynamic that occurs among venire people [those summoned to the courthouse], in the discussions that go on in the group. People will say things in the process of open court that other jurors may not have thought about but begin to consider because its been stated openly… you would lose something very valuable if you [conducted jury selection in that manner].”

In the absence of such a change, Justice Sotomayor argued that jury service could be made more attractive by framing jury service in a manner that properly emphasizes the necessary and unique role that jury trials play in protecting and furthering the public good: Sotomayor has personally found the most success by “explaining to jurors the importance of the process, [as well as] their individual importance in being a part of the process.”


Posted in Jury structure and reform, Social/political impact of juries | 1 Comment

NYU School of Law Civil Jury Project

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

In December 2016, the NYU School of Law launched the Civil Jury Project. This new initiative seeks to examine the rapid decline in the relevance and use of the jury trial in civil cases, despite the drastic increase in the use of civil lawsuits themselves. This problem has taken on greater public prominence recently. (We wrote a blog-post on the subject back in October, which can be found here.)

The Civil Jury Project intends to outline the decline’s broad and systemic causes, the consequences it has and will continue to bring about, both “for the legal system and society more broadly,” and the solutions that might be feasibly implemented to either roll back that decline or inhibit those consequences. Among other things, these solutions will include a broad re-evaluation in the “ways in which juries are constituted and jury trials are conducted,” including whether there should be a right to trial by jury, and “how that right can be exercised consistent with basic commitments” to speed and efficiency.

Along with serving as a center for empirical assessments of the current and future role of the civil jury, the Project also intends to develop and disseminate effective educational programs on the civil jury that might reach the broader public.

Along with a list of scholarship covering different aspects of the civil jury system, ranging from arbitration to jury selection, the Civil Jury Project also offers numerous resources for outside application: a guide to planning a “Jury Improvement Lunch,” a concept launched by the project wherein State and Federal judges have lunch with their recent jurors to discuss their experience; “Talking Points” about why we need juries; and a video archive of the various programs they have launched thus far

A list of potential projects the Civil Jury Project could undertake can be found here, while its February newsletter, the third of its kind, can be found here.

Posted in Jury structure and reform, Public/media views of juries | 2 Comments

The Bundy occupation in Oregon and jury nullification

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

This post is about the jury that exonerated Ammon and Ryan Bundy, along with their compatriots, after they had occupied a federal wildlife refuge in Oregon. Before we go to Oregon, though, first a little history is in order.

A little-known power accorded to juries in the American judicial system is that of nullification. When a jury believes the evidence presented against a defendant in question shows, beyond a reasonable doubt, that that defendant is guilty of having broken the law, they are not statutorily obligated to find the defendant “guilty.” Indeed, if they believe the circumstances surrounding the selected application of the law, or the law in its entirety, does not align with their view or sense of justice, they can vote “not guilty,” thus effectively nullifying the law they were meant to apply.

Jury nullification, as an institutional mechanism available to jurors, dates back to our nation’s founding. The most famous historical example is probably the 1735 trial of John Peter Zenger: Zenger, publisher of the New York Weekly Journal, was charged with libel after the journal published harsh and accusatory criticism of the royal governor, William S. Cosby. Although the judge instructed the jury to judge Zenger based on whether or not they believed he had printed the stories, and they indeed did believe that Zenger did so, they nonetheless returned a verdict of “not guilty” after 10 minutes of deliberation, effectively nullifying the libel law.

Image result for John Peter Zenger

The New-York Weekly Journal, February 1973

However, nullification has gradually become less significant over time, and today most jurors are not even informed of its existence. In the 1895 Supreme Court case United States v. Sparf, the Court ruled by a margin of 7-2 that judges do not have to notify the jury of their nullification abilities. Indeed, in most jurisdictions, judges instruct the jury that they are to consider the facts of the case exclusively, rather than the merits of the law and its application. More recently, many courts have ruled that judges have the ability to remove jurors that have expressed their intention to nullify the ruling. Through all of these changes and legal precedents, jurors have maintained the ability to block the application of a law if doing so would violate its fundamental spirit and intention, given the facts and context of the case.

That brings us to the ruling made by an Oregon jury on Thursday, October 8th, in which they found Ammon and Ryan Bundy, along with five other co-defendants, all not guilty, to the surprise of nearly everyone involved. They had been charged with conspiring to impede federal officers and for possessing firearms in a federal facility, following their armed occupation of Oregon’s Malheur National Wildlife Refuge that lasted 41 days before the last of the occupiers was put into custody. Prosecutors, according to The Oregonian, thought that the facts of the case were quite simple:

The refuge occupiers took control of a wildlife refuge that wasn’t theirs. The heavily armed guards that manned the front gate and watchtower during the 41-day takeover, in an of itself, was “intimidating,” and prevented officers from the U.S. Fish and Wildlife Service and U.S. Bureau of Land Management from carrying out their work.

Indeed, the jury was provided with evidence clearly showing both that the occupiers vowed to fight federal agents if they attempted to enter the facility and that they were indeed brandishing firearms. The jury certainly comprehended this evidence, yet jurors still felt compelled to hand down a not-guilty verdict.

How to best reconcile this inconsistency? Some have argued that, regardless of legal foundation or interpretation, the ruling will set a dangerous precedent that will ultimately serve to empower and inspire the more than 1,000 radical anti-government groups that have arisen during Obama’s presidency to take similar, extreme actions if their demands are not met. Emboldened by the Trump presidency that begins in January, 2017, such occupations might even become more normalized by an anti-government Commander in Chief.

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Supporters of the occupation pray to hear the outcome of the trial

Yet others have argued that the prosecution erred in its choice to level a conspiracy charge, which requires the proof of intent; supposedly, they sought to do this because conspiracy charges carried the heaviest of all available penalties. That concern is more serious when viewing the jury’s decision as a potential case of nullification. Perhaps the jurors ignored mostly-overwhelming evidence to find the defendants not guilty. Perhaps they viewed the U.S. government as exercising too much control over the conscience of the individual. Perhaps they viewed the conspiracy charge as overreaching federal authority and jurisdiction.

To consider whether this could count as nullification, several prominent examples deserve mention. One is the 1996 acquittal of Dr. Jack Kevorkian, who was being charged with assisting in the suicides of two individuals; although the court required a guilty verdict merely find that the Dr. had “in some way assisted” in the suicide, and although “that he had done so was never seriously disputed,” the jurors nonetheless found him not-guilty. This was largely based on the premise that the Dr. was being charged according to the Michigan Supreme Court’s interpretation of Michigan “common law”, which many saw as a vehicle through which the government could overreach their authority by retroactively prosecuting individuals for certain actions.

Image result for dr jack kevorkian

Dr. Jack Kevorkian on the cover of Time Magazine, 1996

Another is the case of the 1980’s sanctuary movement: 11 religious activists, including two priests, a minister, and a nun, were charged with providing illegal “sanctuary” to unregistered refugees from Latin America. Jury nullification would’ve provided for the best defense in such a case, as the jury would’ve been able to consult their conscience regarding the justness of this particular application of the refugee law; yet, they were not made aware of nullification, and thus had no defense and were subsequently prosecuted. Yet another occurred in the case of Vietnam draft resisters: as the war progressed, and public anger with the war garnered more and more momentum, defense attorneys began to lobby jurors with a jury nullification argument; indeed, juries were reluctant to prosecute young-men who did not want seemingly-innocent Vietnamese blood on their hands.

The Bundy family certainly took dangerous actions that broke a number of laws and put the lives of federal officials in danger. For this, they deserved to be prosecuted, at the very least to prevent the creation of a precedent which promotes and destigmatizes such action. Yet, the jury’s acquittal of all the defendants can also be seen as an attempt by Oregon residents to block the federal government from enforcing a law with penalties of the highest order.

For those who find the particular verdict worrisome, it could be noted that the same jury power can be exercised to check government authority in cases ranging from the War on Drugs to mass incarceration of African Americans more generally. The virtue of nullification is, in all such cases, in the eye of the beholder.

Posted in Uncategorized | 1 Comment

Florida Supreme Court: Imposition of Death Sentence Requires Unanimous Jury

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

The Florida Supreme Court ruled on Friday, October 14, that it is unconstitutional for the death penalty to be imposed without the unanimous support of a jury.

As the New York Times reported, the ruling concerned the tumultuous murder case of Timothy Lee Hurst, who was charged the 1998 murder of Cynthia Lee Harrison at a restaurant in Escambia County. He was subsequently convicted and sentenced to death in 2000. Twelve years later, following an order from the Florida Supreme Court that Mr. Hurst be re-sentenced, a new jury recommended the death penalty for Mr. Hurst in a 7-5 split decision, a judgment that Florida law required the presiding judge give “great weight” to before final adjudication on the death penalty sentence.

Timothy Lee Hurst was tried and sentenced to death for murder in 2000

This decision was then brought before the U.S. Supreme Court in the 2016 case of Hurst v. Florida. The Court ruled by a margin of 8-1 that Mr. Hurst could not be subject to the death penalty by the independent ruling of a judge, with the Sixth Amendment requiring that it only be imposed by the findings of an impartial jury. Writing for the majority, Justice Sonia Sotomayor  argued that:

The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death… A jury’s mere recommendation is not enough.

In the wake of this ruling, Florida Governor Rick Scott and the Florida State Legislature revamped Florida’s death penalty system, requiring that “juries reach conclusions about the aggravating factors that are crucial to death penalty decisions;” it also increased the number of jurors who must support a death sentence to at least ten out of twelve, up from the previous statutory minimum of seven.

The Florida Supreme Court, however, ruled that this new was unconstitutional. With regard to Hurst’s case, the Court cited the Eighth Amendment in arguing that the implementation of the death penalty must require unanimous agreement by all jurors:

Requiring unanimous jury recommendations of death before the ultimate penalty may be imposed will ensure that in the view of the jury — a veritable microcosm of the community — the defendant committed the worst of murders with the least amount of mitigation.

The justices ordered that Mr. Hurst be given a new sentencing hearing for his 1998 murder conviction. An entire and unanimous jury of Mr. Hurst’s peers, rather than a judge or a partial majority, will now be required to give the death penalty to Mr. Hurst.

Peter N. Mills, an assistant public defender and chair of the Florida Public Defender Association’s death penalty steering committee, argued that this new requirement will be have a positive impact on the state as a  whole:

They (jurors) take responsibility and a sense of ownership when they are required to come to a decision unanimously, so this is a good thing for all of us.

The Jury and Democracy Project’s research on juries shows how seriously they take their charge and that juries recognize that they hold in their hands a defendant’s freedom when they deliberate on a criminal case. Juries are designed to have a strong burden of proof for a reason, such that they can only find guilt for serious crimes when a full jury reaches the same conclusion. Given that the death penalty is the most severe punishment a defendant can be given, the logic of the unanimity requirement seems strongest in such cases.

Nearly all thirty states that have capital punishment require unanimous juries, and there is no reason the others should not follow suit. Whether they should have a death penalty at all, given the fallibility of a legal process that has recorded over one hundred death row exonerations, is another question altogether.


Posted in Conducting trials, Deliberation on juries, Verdicts juries reach | Leave a comment

Rewriting the 6th Amendment: Right to a Speedy Plea Bargain

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

A recent New York Times study, authored by Benjamin Weiser, found that, out of 63,000 federal defendants convicted in 1997, only 3,200 were done so by a jury of their peers. Since then, the number of federal convictions has increased to 81,000, while the number of jury trials has decreased by nearly half, to 1,650. Indeed, the Cato Institute reported that only about 5% of criminal cases will ultimately be adjudicated by juries.

This trend in the nature of the criminal justice system is not what our constitutional founders envisioned: indeed, the 6th Amendment to the Bill of Rights explicitly guarantees certain rights and safeguards for the accused, including the right to a speedy and public trial by an impartial jury.

The reasons that the founders outlined this as an explicit right are not difficult to extricate from their political philosophies. Timothy Lynch, the director of the Cato Institute’s Project on Criminal Justice, wrote in a 2003 piece titled The Case Against Plea Bargaining:

Because any person who is accused of violating the criminal law can lose his liberty, and perhaps even his life depending on the offense and prescribed penalty, the Framers of the constitution took pains to put explicit limits on the awesome powers of government.

They, instead, decided to instill this power in the hands of one peers, “peers” referring to individuals “of the same legal status,” “residing in the state and district wherein the crime shall have been committed.” They would base their judgement not solely on whether the offense committed fit within the strict confines of a legal statute, but rather based on a holistic consideration of the individual’s life circumstances, the context surrounding the offense, and the values of the community in question. This logic also parallels our Founders’  belief in a strictly-constrained federal government and local self-rule: legislators in Washington D.C. do not necessarily hold the same values as local communities, and thus any federal statue they may impose may inevitably lead to the infliction of punishments that ultimately do more harm than good.

Indeed, the forces underlying and driving the trend away from civil and criminal jury trials do ultimately find their roots in Washington D.C. According to the New York Times article:

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.

That is, prosecutors are able to use congressional sentencing guidelines and mandatory minimums as leverage over defendants to enter plea bargains; in exchange for a speedy process, defendants are given “lenient” sentences.

John Gleeson, a former judge on the federal bench in Brooklyn, argued that the:

‘thin presentation’ of evidence needed for indictment ‘is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries. The entire system loses an edge, and I have no doubt that the quality of justice in our courthouses has suffered as a result.

This usurpation of the strict consideration and examination of evidence could prove troubling to progressives and conservatives alike, as Tim Lynch argued in a July 2011 article appearing in the libertarian magazine Reason:

One point often stressed by progressives is that trials bring scrutiny to police conduct. But when deals are struck in courthouse hallways, judges never hear about illegal searches or detentions. This only encourages further misconduct. Conservatives, meanwhile, are right to wonder whether overburdened prosecutors give the guilty too many lenient deals. Why should an armed robber get to plead guilty to a lesser crime such as petty theft?

Both of these drawbacks could be seen in the case of Oumar Issa,  a Malian arrested in 2009 and charged with “narco-terrorism conspiracy,” a crime carrying a mandatory minimum sentence of 20-years, and “conspiring to support a terrorist organization,” a crime carrying no mandatory minimum.

Oumar Issa received a near 5-year sentence without a Jury Trial

Although the public defender, Julia Gatto, representing Mr. Issa had “believed that elements of her case were weak and that there were strongly mitigating circumstances,” Mr. Issa ultimately pleaded guilty to the latter charge, receiving a 57 month sentence, in exchange for the dropping of the former. Progressives would argue that Mr. Issa was never given the realistic opportunity to defend himself, given the relative risk associated with doing so; conservatives would argue that a possible terrorist was let off the hook, potentially endangering other lives, in exchange for a speedy trial. An interview with Mrs. Gatto on the case can be heard here.

Are there any upsides to the decreased use of jury trials?

Weiser argued that “to some extent the number of pleas that are hammered out allow the system to keep moving forward,” while also cutting down substantially on costs to the taxpayer. However, “the condition upon which God hath given liberty to man is” not temporal expediency or pecuniary efficiency, but rather “eternal vigilance.”

Posted in Conducting trials, Summoning juries | 1 Comment