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 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.

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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

On juries, grand juries, and Ferguson, Missouri

As outrage builds about the failure to indict the officer who shot Michael Brown in Ferguson, Missouri, I wanted to take a moment to reflect on the work of the grand jury itself. This blog focuses on criminal and civil juries that decide cases, not on grand juries that decide whether to indict. In the public’s mind, however, both stand as “juries” and so into the fray we go.

First off, one may have heard the expression that a grand jury would indict a ham sandwich. The point is not that grand juries are vegan, but rather they tend to view their job as letting cases proceed to trial and only putting the brakes on those charges that stand on no evidence whatsoever. What makes this case odd is the lack of conviction demonstrated by the prosecutor, as noted by several observers.  A recent piece in The New Yorker put it this way: “aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment.”

But hold on. There appears to be a counter-tendency in grand juries when it comes to finding “probable cause” in charges against police officers. A thoughtful article on the subject appeared in, ulp, Russia Today. (Yes, it’s a Russian-funded news source, but the bits of it I’m citing are noncontroversial, along the lines of a similar piece in FiveThirtyEight.) First up is the fact that only a third of police misconduct complaints result in convictions (only 12 percent in incarceration).

This, in turn, flows back to a 1989 Supreme Court case:

In Graham v. Connor, Chief Justice William Rehnquist wrote in his opinion: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Which brings us back to the work of the grand jury itself. Again, I turn to a non-traditional source, the ideologically-infused Washington Times, for an observation that rings true: the grand jury did its job. The logic of that particular article is a bit twisted (e.g., by deviating from standard practice, the prosecutor sought “justice” rather than an indictment that would simply keep the case in court until an inevitable not-guilty verdict was reached). Even so, it emphasizes the point that given the evidence presented and the way it was presented, the grand jury reached a sensible conclusion in this case.

And as noted at this blog in the case of the Zimmerman shooting in Florida, the jury rarely nullifies the law, but rather holds a mirror up for society to see the implications of the laws it chooses. My expectation is that this case will accelerate the pace of relevant legal reforms–from better camera use at time of arrest to better procedures for indicting police–but that acceleration will be subtle. Decades, not years, will pass before these problems are well addressed.

In the meantime, expect to see another jury on this case should there be a civil trial coming soon. I expect one, and I expect the evidence will be sufficient to find for the family of Michael Brown. But remember that when that case comes, the jury will only know what the jury sees, and what it sees will depend on the judge, the rules, and the attorneys. In that case, however, the Browns will have an attorney of their own, and s/he will probably carry the day.

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