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

Anonymous juries: a troubling development

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

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

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

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 | 2 Comments

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:


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, 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

But who will guard the guardians? On county prosecutors, grand juries, and indicting police officers

With the passage of another week, there’s another case of a grand jury failing to indict a police officer who killed another African-American citizen, Eric Gardner. In the New York case, the coroner ruled the death a homicide and the whole incident was caught on video. The New York Times provided a concise summary of the events that led to Mr. Garner’s death.

Now, another wave of protests has ensued, and a new waves of memes has appeared, including Mr. Garner’s words, “It stops today!” (a call for an end to police harassment/abuse).

But until grand juries more readily indict officers, it is hard to envision it stopping. An indictment is no guarantee of a conviction, but no officer wants to risk the reputational stain that a trial brings, so an indictment in itself is important in such cases.

As I noted in the post on Ferguson, I suspect the problem is less the grand jury’s composition/biases and more the case put before it. Grand juries are famous for indicting at will, yet they show reluctance to indict in these particular cases, including the case of Mr. Garner, where they appear to have become fixated on Garner resisting arrest. What makes police indictments different is that in those cases, the same county prosecutor who relies on police testimony to get indictments/convictions must now turn against that police force. This seems an untenable conflict of interest and suggests the need for an alternative to the county prosecutor as the person who brings charges.

I’m hoping this post shakes loose some unheralded examples of such alternatives, as I have yet to hear of one in common use. Obvious alternatives include: having a prosecutor from a different county handle the case; having a federal prosecutor handle these cases; or expanding the role in these cases for civilian police review boards, such as the one established in Chicago in 2007.

Short of such changes, it’s hard to believe that fiddling with jury composition, adding more police video cameras, or other tweaks will make much difference. In the end, if the prosecutor has a conflict of interest (i.e., a stronger incentive to maintain good relations with the police department than an interest in securing an indictment), the pattern will keep repeating in cases such as these.

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