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.

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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

Jurors Protest Against Judge by Refusing to Serve in His Courtroom

SantaClaraCourthouseIf one ever doubted that jurors speak with a voice that is not only legal but political, consider those jurors who refused to be seated in the courtroom of Judge Aaron Persky in Santa Clara County, California. Judge Pensky gave a six-month sentence to Stanford student Brock Turner in a rape trial.

The lenient judgment–and the compelling 12-page statement read in court by the victim–has sparked national outrage, including a recall campaign against him. (California’s laws permit the recall of a sitting judge if one can muster petition signatures equal to 20% of the votes cast for that judge in the office’s previous election.)

According to the San Jose Mercury News,  at least ten Santa Clara County residents reporting for jury duty have now  registered their protest, as well.

“I can’t be here, I’m so upset,” one juror told the judge while the lawyers were picking the jury in the misdemeanor receiving stolen property case, according to multiple sources. Another prospective juror stood up and said, “I can’t believe what you did.”

Avoiding a standoff, the judge excused each of the jurors from service. Unattributed sources said to be supporting Judge Persky suggested to the Mercury News reporter that some of the jurors “may have been prompted by a desire to get out of jury duty.” That seems unlikely, however, since the jury manager could simply return those persons to the jury pool and subsequently assign them to another courtroom. Such action would raise an interesting question, however, about non-equivalent jury pools across courtrooms.

An unintended consequence of such protests, regardless of reassignment protocols, is that the remaining jurors in Judge Pensky’s courtroom are now statistically likely to include fewer people who found fault with his sentencing. In other words, a protest against a lenient judge increases the likelihood that the remaining jurors are more lenient themselves.

The intent of the protest, however, was to add fuel to the protests against Judge Persky, and the jurors’ effective walkout appears to have done precisely that. (If anyone reading this can think of an earlier case of such protest walkouts by jurors, please post it in the comments.)

Posted in Public/media views of juries, Social/political impact of juries, Summoning juries, Voir dire and jury selection | 2 Comments

Australian jurors and judges disagree on sentencing

Tasmanian Governor & former University of Tasmania law professor Kate Warner

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

In a soon-to-be published study, Tasmanian Governor Kate Warner, former director of the Tasmania Law Reform Institute, found that juries consistently bestow more lenient sentences than do judges.

Warner conducted studies on 987 jurors from 124 criminal trials in the County Court of Victoria between 2013 and 2015. If the jurors returned a guilty verdict for the case, they were immediately asked what they believed to be the appropriate sentence for the convicted defendant. Researchers then compared the sentences recommended by jurors to the sentences subsequently given by the judges.

In nearly two-thirds (62%) of cases, the jurors would have bestowed more lenient sentences than did the judges. An arm of the Australian Broadcasting Corporation reported on the story and saw an inconsistency between juror behavior and public opinion:

Public opinion polls regularly suggest that 70 to 80 per cent of judges are ‘too lenient’.

‘There just seems to be a general perception out there in the community that judges are just too soft on criminals,’ says governor of Tasmania and law professor Kate Warner.

‘You often see newspaper reports of “the prisoner walked free”, and certainly top-of-the-head public opinion polls do suggest that people think judges are out of touch.’

Again, the irony here is that the research shows it is the jurors who arrive at more lenient sentencing preferences, relative to the judges. This incongruence between the surface-level public opinion and the judgments reached by jurors underscores the importance of jury deliberation. Albert Dzur has emphasized the negative consequences of excessively retributional justice, which can be read as a judicial system over-responsive to an unreflective public’s appetite for punishment. This study isn’t the first to suggest that deliberative juries can be more lenient; past reviews have shown juries to largely agree with judges, but acquitting more often when there is disagreement.

This power of deliberation on juries may have meaning beyond legal institutions, as argued in The Jury and DemocracyThe mediating nature of deliberation might have useful political applications, given that legislative disagreement and brinkmanship continues to stand in the way of mutually beneficial progress. With polarization between the parties is greater than at any point in the modern past, proposals for citizen deliberation hold considerable appeal as supplements or alternatives to conventional politics, as argued by Matt Leighninger in The Next Form of Democracy.

Empowered public deliberation might yield policy change on key issues, where public sentiments are strong and consistent. For instance, 89% of Americans agree that there is too much money in politics. Likewise, 82% of Americans agree that they are bothered at least somewhat by the share corporations pay in taxes. Even 65% of Americans agree in a path to citizenship for illegal immigrants currently residing in the United States. Past experience with deliberative polling shows that, if anything, multi-day deliberation can increase those large majorities.

On the other hand, this study from Australia shows that public judgment can shift considerably when given the reins of power. In this case, attitudes shifted on punishment, but only sustained experimentation will show how it shifts on the wider range of issues on which we might need a more deliberative public input.

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

Jury Duty in an Online World

Terry L. WilsonMichigan Department of Corrections photo

Terry L. Wilson, Age 22

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

Following a jury trial held in Macomb County Circuit Court in Mount Clemons,Terry L. Wilson, 22, was convicted of premeditated murder and firearm possession for his involvement in the May 2013 shooting death of William Clark, 24. Wilson was sentenced to life without parole by Judge Jennifer Faunce on July 2014. As the Macomb Daily, a news outlet local to the region, reported on February 24th:

After the verdict, Wilson’s defense attorney complained the trial was tainted by one juror commenting about the case on Facebook and another jury indicating she felt pressured to reach the verdict. The appeals panel notes in its seven-page opinion released Wednesday the juror’s experience was typical, and the juror agreed with the verdict when members were polled by the court clerk.

The complaint filed by the defendant is yet another example of the tension between the design of the jury system, which exposes jurors to a carefully screened body of evidence and argument, and the hyper-connected online world in which jurors now live.

Jury trials, initially established for criminal cases in 1219 by some accounts, serve, in their abstract theoretical form, as a medium through which decision-making authority can be given to a body whose membership reflects the community in which the crime took place. Community members, rather than legal experts, are given interpretive authority for a fundamental reason: They should, through natural processes, have the best understanding of how the community functions and should render a judgment in light of that local cultural knowledge. Placing some of the authority in the hands of normal citizens allows punishments to be given according to local preferences. (For more on this theme, see Albert Dzur’s Punishment, Participatory Democracy, and the Jury.)

The jury is inherently democratic in this respect, but that design was optimized for a world in which communities are remained somewhat isolated from the outside world. How will such juries function in a world without boundaries–the one that Thomas Friedman famously declared to have become “flat”?

Consider this. The Pew Research Center reported that social-media use has skyrocketed in the past ten years. Now, “65% of adults now use social networking sites- a nearly tenfold jump in the past decade.”

In another Pew Research Center study, examining the relationship between the introduction of new technology and social identity, they found that:

Americans have fewer close ties to those from their neighborhoods and from voluntary associations….New technologies, such as the internet and mobile phone, may play a role in advancing this trend…The type of social ties supported by these technologies are relatively weak and geographically dispersed, not the strong, often locally-based ties that tend to be a part of peoples’ core  discussion network.

In a world where an increasing proportion of citizens associate themselves with–and thus see themselves from the perspective of–a decentralized, online community, rather than a localized one, can juries continue to function in a localized, communal way that, in turn, produces the best outcomes? Or will the deliberative process breakdown according to cleavages that exist across social-media and other platforms, producing outcomes along other preference dimensions?

This contradiction between the jury’s original design and this new reality does not doom the institution. Often, the online links back to the jury prove less worrisome than they might seem.

For instance, returning to the case that started this post, the Macomb Daily newspaper further reported, appeals judges found that “whether the juror in question may have felt pressured by another juror to reach a verdict was part of the deliberation process.”

Attorneys also learned the jury foreman responded to a Facebook friend who said it was “cool” the foreman served on a jury. “Not cool a young man is dead another young man will be in prison for a long time maybe,” the foreman wrote on his Facebook page Saturday, May 31, 2014, a day after closing arguments.

Regarding that correspondence, the appeals judges found, “no connection between the conversation and either a material aspect of the case or the jury’s verdict.”

Instilled within the ruling given by the three-judge appeals panel is a more optimistic vision of how social media and the existing jury system may coexist. Rather than social media serving to erode the the jury’s deliberative perspective, social media can serve to expand and promote the deliberative process. The foreman posted on Facebook and generated local conversation, which, under circumstances where social media use was limited in some way, would otherwise not have occurred. In a sense, the Facebook posts did no more than connect the trial to a wider public, and not in a way that influenced the trial outcome.

States and counties are already experimenting with different ways of handling social media, and the National Center for State Courts has a resource guide courts can use to set their own standards.  It might be more useful to take a more experimental approach, with enough jurisdictions participating the gauge the differential impact of systematically varied policies for handling social media. No such experiment is underway, to our knowledge, so in the meantime, a patchwork of policies and practices will continue as courts try to grapple with the changing social reality of jury service.

Posted in Conducting trials, Deliberation on juries, Jury structure and reform, Social/political impact of juries | Leave a comment