How Capitalism Influences the American Jury System

When the American Jury first came to fruition, it wasn’t perfect. Most people were excluded from jury service and the process of conviction was not procedurally or substantively fair. However, as marginalized groups throughout history began fighting for their rights – slowly the American jury became more inclusive. We had hoped inclusivity would no doubt lead to fair trials since a jury of peers would be able to consider the defendant’s perspective, and thus be able to determine if what they did was wrong by applying our shared societal and legal standards.

But alas, where capitalism is involved, fairness and equity diminish. While capitalism used to be a mere economic function, it has seeped into every sector of American life including our judicial system. The more private resources an individual has, the better the chance for success. And mirroring the competitive nature of capitalism, litigants are now forced to compete with their private resources to achieve their desired verdict. 

 

In what ways can private resources advantage a litigant?

 

(1)  Attorneys. The average cost of a criminal defense lawyer is $8,000. For a civil case, Smaller firms or less experienced attorneys will charge $100-$300 per hour, while larger, more powerful firms with in-demand attorneys may charge as much as $500 per hour. While there are public defendants and attorneys that work on a contingency fee, both of those options are not optimal for several reasons. Public defenders are usually overworked and do not perform as well as private attorneys. And attorneys working on a contingency fee basisonly take cases that they expect will have a huge payout, if your case isn’t a winner, you most likely will not be taken up as a client.

(2)  Jury consultants. Jury consultants specialize in granting a litigant the most favorable jury to their case by utilizing jury science. How much does the assistance of a jury consultant cost? On average, $250 per hour. 

(3)  Mock Trials. Litigants can run a full mock trial with the facts of their case to see if it would be worth it to take the case to court or settle. Most plaintiffs cannot afford this as it comes out to be about $12,000-20,000.

(4)  Expert Witnesses. Expert witnesses play a very important role in jury trials. They tend to explain complex issues in a persuasive way, swaying juries to think about the evidence in favor of whoever is paying them. Experts have become so integral to cases that litigants engage in a “Battle of the Experts”, essentially trying to throw as much money as they can to have more and better experts than their opponents. After compiling expert witness fee datafrom more than 35,000 cases, it has been determined that the average rate for initial case reviews for all expert witnesses is $356/hour, the average rate for deposition appearances is $448/hour, and the average rate for trial testimony is $478/hour.

 

How does this relate to juries? Well, the Sixth Amendment guarantees that those accused of a crime be tried by a local, impartial jury. If we want fair and impartial juries for all Americans, we must admit that allowing this extreme variance of private resources that can effectively make or break a trial, is a problem. With the current model, juries can essentially be bought by whoever has the most resources. If you are a wealthy litigant, you can filter out the jury to your preferred jurors, manipulate juries with fancy experts, and even predict the outcome of the trial before it happens. 

My suggestion would be to either have a monetary cap on external resources for trials based on your opposing litigant’s financial ability or require each litigant to disclose to the jury how much they spent on external resources for the trial. Of course, these suggestions are considered quite radical but with the growing inequality in our court systems where justice is supposed to prevail over all else – I would argue a radical change is necessary.

Potential Juror Misconduct in High-Profile Trial. Is a New Trial Warranted?

In 2004, Scott Peterson was convicted of first degree murder for his wife and unborn son. The tragic murders were widely publicized and many viewed Peterson's conviction as justice served. After the jury rendered the conviction, Peterson was sentenced to death. 

But Peterson's defense team strategized various legal challenges to the death sentence, and in 2020, Peterson's death sentence was overturned. The California Supreme Court found grounds for the reversal because of errors in the jury selection process, such as improperly turning away potential jurors for service.

With momentum on their side, Peterson's defense team has been strategizing to reverse his murder conviction altogether. The grounds? An alleged single juror's misconduct before the trial. For example, Juror No. 7 who served on the original trial has now been offered immunity in exchange for their truthful testimony regarding their own potential juror misconduct. 

The allegations against Juror 7 revolve around the jury selection process. The allegations are that Juror 7 withheld and falsely stated information during the jury selection process and juror questionnaire. If the court finds the evidence sufficient for juror misconduct, the court could grant a new trial for Peterson. 

Specifically, Peterson's defense team is accusing Juror 7 of lying on the jury questionnaire, about whether Juror 7 had been a victim of domestic violence. Furthermore, the defense team alleges that Juror 7 was pregnant, a victim of domestic violence, and had previously been involved in legal proceedings which were undisclosed during jury selection. Because of the allegations, a California state Court recently ordered a hearing for Juror 7 to testify to these allegations and for the court to determine if a new trial is warranted. 

Standard for a Juror Misconduct Motion

Although Peterson's motion for alleged juror misconduct takes place in California, the comparable juror misconduct rule in Texas is found in Texas Rule of Civil Procedure 327. Rule 327 is a motion to the court, and outlines the governing standard for courts in evaluating whether a new trial is warranted from juror misconduct. 

The motion must be supported by an affidavit, and must allege the specific facts of misconduct by a juror during voir dire. Ultimately, in Texas, it is up to the court to determine whether the juror misconduct arose to materially impact the outcome of the trial. 

Thus, Peterson's defense team may be able to meet the standard for a new trial. But the defense team would need to prove that under the California standard (which is similar to Texas), that Peterson's rights were materially impacted by Juror 7's misconduct.

Finally, Peterson's defense team has also been adding other facts to their motion to show that Juror 7's actions were collectively juror misconduct. For instance, Peterson's defense team is alleging that Juror 7 had ulterior motives to be on the jury for profit. This is because Juror 7, along with six other jury members, wrote a book about their experience of serving on the jury in the Peterson trial. Additionally, Peterson's defense team intends to introduce evidence of seventeen letters which Juror 7 wrote to Peterson after his conviction. In the end, it will be up to the Court to determine whether all of the alleged juror misconduct evidence resulted in an unfair trial for Peterson. 

Reforming the Texas Grand Jury

Introduction to the Texas Grand Jury

        Texas state law, found at Tex. Const. art. I, § 10, provides for the creation of a grand jury. A grand jury, unlike a petit jury, determines whether enough evidence exists for a criminal indictment to be issued. This means they examine presented evidence to determine whether or not there is probable cause that (1) a crime has been committed (2) by one or more individuals.The grand jury proceeding culminates in a “true bill.” After that, the prosecutor issues an indictment, which details the criminal charges against the accused which permits for their arrest. This gives the trial court jurisdiction over the criminal case. Notably, the only way to obtain a federal criminal indictment is through the grand jury process.

Differences from Civil Jury Proceedings

        Unlike civil jury proceedings, which take place in open court during trial, grand juries are conducted in secret. Additionally, it is not an “adversarial” proceeding— this means the prosecutor is the only person who presents evidence. The defense, on the other hand, calls no witnesses and introduces no evidence. In fact, the defense attorney is not even allowed to be in the room with the grand jury. Interestingly, the accused also does not have the right to involved in the grand jury proceedings, nor the right to know that the prosecutor is presenting evidence against them.

        Additionally, Texas grand juries do not need to be unanimous in their verdict. Only nine of the jurors need to agree that there is probable cause to bring an indictment, according to 

Texas Code of Civil Procedure Article 20.19.This is a stark contrast to cril jury proceedings in Texas, which usually require a unanimous verdict. 

Successful Reform in Texas

        The proposition of grand jury reform, while daunting, is not impossible. For example, 

Until recently, the “pick-a-pal” system allowed the placing of friends, neighbors, and colleagues onto state grand juries. However, in 2015, this practice was stopped thanks to new laws. This demonstrates that while grand jury proceedings are rarely reformed due to their secrecy, such reforms can still be successful.

Proposed Reforms

        In 2019, SB 1492 was introduced to the Texas Legislature. The bill would have required prosecutors to bring any exculpatory evidence regarding the defendant before the Texas grand jury. However, this bill did not make it out of committee. These reforms have passed in 

New Mexico and have been implemented successfully. Kansas also stands apart as another state in which these practices have been successful. Most likely, the best chance for this bill’s success is the passage of similar legislation in a majority of states, or a requirement imposed by the Texas Supreme Court.

White But Not Equal: Mexican-Americans Battle into the Jury System

The common issue Mexican-Americans face is being too Mexican for Americans and too American for Mexicans. There is a constant struggle trying to identify with either culture. They are not black, and they are not considered white by their peers. Therefore, Mexican-Americans are often fighting for their place in the United States.

Mexican-Americans fought for their spot in the jury system in 1954. In Hernandez v. Texas, Pete Hernandez was indicted for murder by an all-white grand jury. Hernandez’ attorneys claimed that Mexican-Americans were barred from the jury commission that selected juries and from petit juries. A Mexican-American had not served on a jury in the county in over twenty-five years. Therefore, Hernandez claimed that Mexican ancestry citizens were discriminated against as a “special class” in Jackson County. The Supreme Court held that evidence warranted finding that individuals of Mexican descent were a separate class, distinct from whites, in the community in question, and there had been a systematic exclusion of the members of such class from the jury service.

 

This case made a shift in Latino identity since there was now a demand for inclusion in the political and judicial system. However, Latinos still face many challenges in the jury system today. There is still little research or data on the Latin juror or lack thereof. There are many studies of “a diverse juror” and “jury diversity,” but these are often focused on race and black jurors.

 

The data is limited when it comes to Latin people, because information about Latin heritage has not always been collected or reported accurately within the criminal justice system. This may be attributed to the history of being asked to check a white or black box for their race on paper. They could not check the black box nor did they confidently check the white box. The signs were clear in the past: “No Mexicans Served Here” and “Hombres Aqui” beside “Colored Men” on separate restroom doors. Even though the research studies do not have specific data for Mexican-Americans, they will often include one to two sentences about them. These normally state that the Latin juror is underrepresented in the jury system, and it is because Latin people are more likely to be incarcerated than non-Latin whites.

 

Therefore, the judicial system does not truly know the impact or effects of having Mexican-Americans on the jury. This is with the understanding of the difficulty for Mexican-Americans to even reach the actual trial as a juror member. However, it is estimated that by the year 2050, nearly one in three U.S. residents will be Latino. Hence, there is a need for more research and studies on the Mexican-American juror. 

The Proper Place for Social Media within Jury Selection

     As social media continues to be a prevalent force in society serving as the main way people share information, judges and attorneys are continuously flirting with the line between finding strong information and infringing on individual privacy. 

  

  Information available through the internet may be indicative of the kind of juror a particular person would be. However, the broader issue is whether jurors have a constitutional right to privacy during the jury selection process. When the question has presented itself during case law issues, courts have negated to answer the question or provide a true standard for jurors. The reasoning is that Courts are concerned that by solidifying a constitutional right to privacy, a prospective juror could prolong the judicial process by asserting the right until a superior tribunal declares his expectation unreasonable or refuses to answer . . . on the ground that his privacy right outweighed the defendant's need to know. Currently, this issue has not been answered by courts, but scholars continue to debate the issue. 

    Thus far, studies have shown that a uniform search must be developed and applied to each juror in order to attempt to collect equal information from each juror. However, a concern that comes with performing this search for every juror is that it takes a lot of time away from other methods of collecting information to perform this search for each juror on various social media platforms. Likewise, even though there are some people that still have their social media pages made public, most people have their profiles set to private which is another hurdle for attorneys and judges to overcome. 

    Because of this fine line between obtaining useful information that voir dire may not reveal, and acknowledging the ethical rationale of protecting juror privacy, it is becoming more common for judges and attorneys to agree to the terms that social media will come in to play for jury selection at the beginning of the process. Even when social media research is permitted, it is not always as effective as attorneys hope. If only 35% of the jurors have their social media set to public and the attorney can access strong information, the results become skewed when the remaining majority of the jurors have protected most of their information and now the results become inaccurate and subjective at best. 

    In a different light, the ABA has acknowledged that navigating social media inclusion in jury selection research is an area of water that should be treaded with care. In a 2014 ABA opinion, the ABA stated that the line is increasingly blurred between an attorney's proper investigation of a juror and his improper communication with the juror. The Committee recommends that judges and attorneys discuss this and agree to terms of social media usage in jury selection, as well as to inform the jurors that their backgrounds will be looked into in this manner. The timing of this research is crucial due to the ethical implications attorneys would face due to Model of Professional Conduct 3.5(b). This rule prohibits attorneys from “communicating ex parte with a prospective juror during the proceeding unless authorized to do so by law or court order.” Recent requests for additional rules or opinions regarding social media suggested guidelines for attorneys to follow focus on this model rule for guidance. Even though a new rule has yet to be created, ethics opinion on this topic hold great weight in the minds of attorneys and greatly impact their practice decisions regarding remaining competent while using social media as a research tool. 

An Honest Mistake: The Hazard of One Juror's Questionnaire

Juror Number 50 and the “Honest Mistake”

A juror’s omission on their jury questionnaire cast doubt on a recent verdict in a high-profile criminal case and on the fairness of the jury selection process. Ghislaine Maxwell was convicted in December on sex-trafficking charges. Following the verdict, Scotty David, “Juror 50” in the case, revealed to the media that he shared his own experience of abuse as a child with the other jurors during deliberations.  David shared that he remembered significant elements of his own abuse but not every detail, which swayed several jurors concerned with the accuracy and memory of victim witnesses.

 Once reported, both parties brought the matter before the court to inquire into David’s failure to disclose the past abuse. The jury questionnaire specifically asked whether the juror had been a victim of sexual harassment, sexual abuse, or sexual assault, and whether the juror had been subject to abuse at the hands of a family member. David answered “No” to both questions, but told media he had been subject to sexual abuse as a child by his stepbrother and shared this experience with other jurors. Judge Alison Nathan granted David immunity to testify at the inquiry hearing after David told the court he would invoke his fifth amendment right against self-incrimination. Upon questioning, David stated that he felt rushed completing the questionnaire and was distracted by activity in the court room and by a recent breakup. He additionally stated that he answered no to the questions as he did not view himself as a victim and did not consider his stepbrother a family member. David denied intentionally lying in order to be placed on the jury, claiming it was “an honest mistake.”

 Maxwell’s attorneys have requested a mistrial, alleging that the misstatements were intentional and deliberate. Further, the defense pointed to David’s communication with news medias and social media posts following trial, claiming these were a “publicity tour.” Judge Nathan has allowed both sides to submit further briefing before she issues a ruling.  

Combatting Mistakes and Dishonesty

Jury questionnaires are a vital tool in assisting the court and parties in forming an impartial jury. Collecting information through a questionnaire can also save time and money and encourage more honest answers from jurors than public questioning in open court. However, whether intentionally or by accident, jurors still may provide inaccurate or untrue information through these questionnaires, which undermines the process of selecting 12 unbiased jurors. Juror honesty has long been upheld as fundamental to the Sixth Amendment right to an impartial jury.

The instance of Scotty David presents a unique situation which demonstrates the intersection of high-profile cases generating media attention and the weaknesses of the jury questionnaire. First, the propriety of discussing jury deliberations with the media is called into question, especially where this exchange was revealed but the court cannot probe into deliberations on review. Second, this exposes the potential for juror confusion throughout the selection process. To pursue the goal of an impartial jury and fair trial, attorneys and courts must strive for ways to combine jury questionnaires, voir dire questioning, and other information collecting tools to assist jurors throughout the selection process and remove genuinely biased jurors.

The Polarizing Effect of Jury Consultants

 Introduction

            Jury selection can be a tricky and complicated process for each side involved in trial. As a result, many lawyers have turned to Jury Consultants, in an effort to find the right members of their jury pool. But Jury Consultants do not come without some stigmas that many opponents would argue outweigh the benefits. Through those arguments, these opponents point to the consultants delving into the private lives of some potential jurors, as well as other problems such as efforts to exclude intellectuals or certain people in the voir dire process.

            Even so, the proponents of Jury Consultants make a compelling argument that strives to show the true efficacy of employing these professionals for trials. Accordingly, while the debate continues to warrant intriguing arguments on both sides, the use of Jury Consultants, when used effectively, can provide clear insights into a potential venire and can provide attorneys with useful information that will allow for a more appropriate panel of jurors.

Benefits of Jury Consultants

            Of the many benefits that Jury Consultants can provide in voir dire, the most impactful is the ability for those consultants to find information on jurors that are not otherwise readily accessible. For example, Jury Consultants can find biases that may be lurking due to a juror’s views toward the trial at the outset. Those biases could be quite problematic, and a competent attorney would look to strike those individuals for cause, or at least with a peremptory strike. Those biases could simply come from a potential juror’s employment or socioeconomic status—factors that would not otherwise be noticeable to the attorneys. Indeed, Jury Consultants can extract much valuable information at the first major point in a trial: voir dire.

            Other benefits provided by Jury Consultants include visual aids for attorneys and jurors, mock trials, and even opinion polls. Those opinion polls are often used to elicit biases, as was mentioned already; however, they can also provide simple “earmarks” for attorneys to refer to during the actual trial. This means that, while witnesses testify or evidence is presented, attorneys can use those opinion polls or questionnaires to get a more accurate view as to the jurors’ thought processes during those moments.

            But Jury Consultants certainly do not come without opposition. Much of that opposition advocates that these professionals taint the jurors, which causes much more harm than good.

Problems Caused by Jury Consultants

            There is an argument about the constitutionality of employing these psychologists as Jury Consultants. The argument claims—quite effectively, in fact—that such science improperly imbalances the scales of justice. More often than not, Jury Consultants are being hired in order to simply win the case, not to ensure a fairer trial. That’s where the constitutionality concerns come in. The Sixth Amendment, which aims to ensure a jury of one’s peers, can be extremely restricted by the use of these consultants.

            Another problem that exists centers around the optics of hiring these professionals. Jury Consultants are not called in for unimportant cases; they are hired for high-profile trials. That is common knowledge among many members of a potential jury pool. So when those jurors realize that a Jury Consultant has been hired for their trial, it becomes more apparent to the members of voir dire that this is a high-profile case. The issues then created are that potential jurors may be more inclined to try and withhold biases or even truthful information in order to participate in an “important” case. While many potential jurors may already be aware of a trial’s significance, the weight of that significance is certainly amplified by the existence of a Jury Consultant.

            These are merely some of the arguments against the policy of hiring consultants for the voir dire process. Other concerns include the follow-up questions and behavior by the Jury Consultants which can serve to introduce bias into the case that was not already there. Again, these concerns are certainly not without merit, and they create quite a compelling argument.

Conclusion

            While there are many intriguing arguments that would squash attorneys’ abilities to employ these Jury Consultants, the overall benefit certainly outweighs these “cons.” The idea of a trial is to create a panel of jurors with the least amount of bias and the greatest ability to render a competent verdict. As such, Jury Consultants can serve to improve that process to more accurately ensure an adequate jury panel.

The January 6 Trials and Their Impartial Juries - A Developing Oxymoron?

On March 8, 2022, the first jury to hear one of the trials for the January 6 Capitol attack returned a guilty verdict for the defendant, Guy Reffitt. The jury–which took only two hours to deliberate–found Reffit guilty on all five of the felony charges. The outcome of this case will impact other pending cases for those involved, especially those contemplating taking a chance at trial. And for those defendants, given the high publicity and political nature of January 6, there are ongoing concerns of finding impartial juries to hear their cases.

When picking a jury, particularly for high profile cases, parties look for jurors with limited to no knowledge of the event to combat any preconceived opinions. However, given the nature of January 6, finding jurors with limited to no knowledge of the event is nearly impossible. January 6 has received ongoing media attention from nearly all news sources, some of which provide drastically different perspectives of how the events unfolded.

Some may consider focusing on jurors who don't keep up with the news in hopes that they have limited to no knowledge about the attack. But, not so fast–the event has made its way into pop culture, resulting in SNL skits, social media memes, and even an HBO documentary about the attack.

Additionally, the trials are being held in Washington D.C., a predominantly democratic population. Given the political nature of these cases, defense attorneys worry about finding jurors that can set aside their political beliefs and be impartial. 

So, what is the solution?

The District Judge in the Reffitt case addressed these concerns for the January 6 trials. Judge Dabney Friedrich acknowledged that most, if not all, of the potential jurors would have some knowledge of the events, which is unusual when picking a jury. However, he suggested that, instead of asking whether the potential juror was familiar with the events, the “critical question” was whether the potential juror had “such fixed opinions” over what happened. 

What will jury selection look like moving forward?

Parties will want to know the extent that each potential juror is familiar with January 6. It could be helpful to ask about how frequently they watch or read the news, which sources they prefer, and potentially delving deeper into the potential juror’s trust in news sources. Defense attorneys may prefer jurors who keep up with multiple news sources, potentially with different reporting styles, showing an ability to explore alternative perspectives.

The January 6 trials present a unique opportunity to show just how much technology has changed the concept of the impartial jury. When all of America is watching closely as these trials unfold, it could become increasingly more difficult to create a jury that is unfamiliar with the events. Accordingly, parties on both sides will have to tweak their strategies to account for these hurdles.

Too Hot to Handle: Juror Misconduct

Juror misconduct is nothing new, but the ways in which a juror acts up can have prejudicial effects on the trial. 

Sixth Amendment Right to a Fair Trial 

The Sixth Amendment gives criminal defendants the right to a "public trial without necessary delay" and the right to "an impartial jury." 

When a juror acts improperly whether that action is voluntary or not, this action must be brought to the attention of the presiding judge. Then the judge will hold a separate evidentiary hearing to determine whether this action has a prejudicial effect on the trial. Depending on the degree of prejudice, a judge can keep the trial moving or declare a mistrial. See David P. Goldstein, The Appearance of Impropriety and Jurors on Social Networking Sites: Rebooting the Way Courts Deal with Juror Misconduct, 24 Geo. J. Legal Ethics 589, 595 (2011).

The misconduct may occur pre- or post-verdict. It is important for judges and other jurors to keep an eye out for any impropriety and address it immediately. Any pre-verdict inquiries can be dealt with using the method mentioned in the above paragraph. The misconduct is still measured for its prejudicialness, but when the misconduct is discovered post-verdict, the judge has less discretion in managing the trial. Most criminal defendants will appeal a guilty verdict when they find out a juror acted improperly. In extreme cases, a judge will have to reverse the verdict. See Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322, 329 (2005).

Misconduct Examples 

Most recently, a juror was caught playing Sudoku during the Elizabeth Holmes multi-week trial in California. This juror was dismissed for "good cause" and replaced with an alternate. 

The most common example of misconduct occurs when jurors use the Internet and conduct their own independent research. This type of misconduct has a prejudicial effect on the trial because a juror may be influenced from biased media articles, or the juror may hold on to their findings as if they were admitted as evidence. See Daniel William Bell, Juror Misconduct and the Internet, 38 Am. J. Crim. L. 81 (2010). It is vital to an impartial trial that the jury only consider evidence admitted at trial, witness testimony, conduct in the courtroom, and their own prior experiences. 

Looking up outside information is prohibited, but the access to Internet is hard, if not impossible, to control. Courts have held jurors' cellphones while they are in the courthouse. When the jurors go home for the night, it is impossible for the court to stop them from googling something about the case. See Goldstein, infra at 600. “Rather than discourage jurors' sense of moral duty, the courts might strive to redirect it by educating jurors as to the powerful reasons why their duty is to avoid outside information rather than to seek it out.” See Bell, infra at 94.

Other examples of misconduct include: communicating with outside third parties or with other jurors before deliberation, either evading questions during voir dire or not answering those questions truthfully, tweeting about the trial, and posting a poll on Facebook to decide a defendant's guilt. See Gershman, infra at 324, and Goldstein, infra at 589. Because mostly everyone has a smart phone today, the chances of juror misconduct are limitless. 

Consequences and Remedies 

Courts have decided to treat juror misconduct as they see fit. The most common way courts try to prevent juror misconduct is to give them very detailed preliminary instructions usually at the start of voir dire. But even with these instructions, jurors do not follow them or think they can get away with it. 

As noted in the Elizabeth Holmes trial, if the misconduct is discovered during the trial, then the court and lawyers confer to decide whether that juror should be dismissed and replaced. If the misconduct occurs post-verdict, then most courts remedy the prejudicialness by reversing the verdict. The court may also declare a mistrial. "Whether or not juror disclosures lead to a mistrial, the delays and additional resources required by investigations into the conduct have a significant cost, in terms of both money and time, on the judicial system generally and the litigants specifically." Goldstein, infra at 594.

While some courts have gone so far as to pursue criminal charges for extreme misconduct, there seems to be a chilling effect on other jurors reporting the misconduct. With a higher penalty, other jurors do not want to punish the one who acts up. See id. at 600.

Overall, the jury system is built upon the foundations of fairness and impartiality. "As the Supreme Court has repeatedly observed, invalidating a verdict after irresponsible and improper jury behavior would undermine the existence of the jury system." Gershman, infra at 344. 

A criminal defendant is constitutionally guaranteed a right to a fair trial by an impartial jury which is the reason why misconduct of some jurors must be handled seriously. 

A Batson Win: State v. Clegg

 As discussed in my prior posting, Batson challenges are nearly impossible for a defendant to win.  This is because of the high burden Batson challenge proponents are required to meet.  First, the defendant must make a prima facie case, showing that the prosecution used a peremptory strike on a juror because of that juror's race.  Second, the prosecution must offer a non-race-based explanation for why that juror was struck.  Third, the court must decide whether the prosecution engaged in purposeful discrimination.  In sum, the court must find that: (1) the strike was actually motivated by race, and (2) the prosecution's race-neutral explanation is a lie. 

https://www.nccourts.gov/courts/supreme-court

Despite this high burden, one defendant in North Carolina just won a Batson challenge — which in turn invalidated his conviction.

In 2014, Christopher Clegg was indicted for robbery with a dangerous weapon and possession of a firearm by a felon.  Of the thirty-three potential jurors in his trial, only three were persons of color.  During jury selection, the defense counsel raised a Batson challenge after the prosecution used two peremptory strikes to remove two Black women from the jury.  Viola Jeffreys and Gwendolyn Aubrey were the only African American potential jurors in the jury box at the time.

The prosecutor offered two race-neutral explanations for striking these two women.  First, he stated that these strikes were exercised because of both women's "body language" and their "failure to look" at him.  Second, Jeffreys was struck because of her prior employment at the Dorothea Dix Hospital, where she worked as a nurse in the mental health field. Third, he struck Aubrey because she responded "I suppose" when he asked if she could be "fail and impartial" during the trial.

The defense argued that these explanations were all pretextual.  The trial court ruled that Clegg had "failed to establish that race was a significant factor in the peremptory strikes," and thus overruled his Batson challenge.  Clegg was convicted and sentenced to a term of sixty-six to ninety-two months in prison.  The case was appealed numerous times and in 2019 it was remanded by the North Carolina Supreme Court to be reheard at the trial court level.  Here, like before, the trial court found that there was no Batson violation — despite finding that the race-neutral justifications given by the prosector failed.

In 2022, the North Carolina Supreme Court granted the defendant's petition for discretionary review.  The court found that the trial court was both correct and incorrect in their findings.  The trial court was correct to:

1.  Reject the "I suppose" explanation because it was contradicted by the trial record.  The record reflected that Aubrey actually answered "I suppose" to a question about whether she was "confident in her ability to focus on the trial," as she worked night shifts. 
2.  Reject the "body language" explanation because it was not supported by the record.  The North Carolina Supreme Court noted that this reasoning itself is suspect because historically it was found on race-neutral "cheat-sheets."
3.  Consider the statistical evidence regarding the disproportionate use of peremptory strikes against Black potential jurors in both this case and statewide.  The North Carolina Supreme Court noted that "such data is included among the many types of evidence that a defendant may present, and a court may consider, within a Batson challenge."

However, the trial court erred in various ways when applying the standards of proof and the weighing test of the Batson challenge.  Therefore, the North Carolina Supreme Court reversed the trial court's order overruling the defendant's Batson objection, vacated the defendant's conviction, and remanded the case to the trial court for further proceedings.

This is promising step towards the goal of eliminating racial discrimination in jury selection in North Carolina. 

Our Form of Democracy is {Jury} Bribery on the Highest Scale...

Is Jury Bribery as Rare as Our Steaks? 

    One criticism of the jury system is that jurors are sometimes improperly influenced, threatened, or bribed. Although against the law, jury bribery has occurred - maybe more than we think. Just because the juror or bribing party isn't caught doesn't mean it didn't happen. 

SCOTTISH JUROR CORRUPTION

    The first prosecution of jury bribery in Scottish history began in 2016. A 62-year-old woman, Catherine Leahy, was convicted and sentenced to six years in prison for taking bribes during a five-month money laundering and drug trafficking trial (does it get any more ironic than this??). During the course of this trial, Leahy accepted over €3,000 while deliberating. After the police received a tip of jury tampering, police bugged her home from September 19, 2016 to September 30, 2016. The decision to carry out surveillance followed a meeting between the Scotland's most senior prosecutor the Lord Advocate and Scotland's most senior judge, the Lord President. 

    Leahy lived with her 22-year-old son at the time who was originally charged alongside his mother but the charged against him were later dropped. During the surveillance, 31 conversations were recorded including the following: 

                Son: "Mum, it wasn't just you that got bribed so that now when they                         come to you, you're a step ahead."

                Leahy replied: "There is nothing that can link you with them."

With Leahy as the spokesperson of the trial, the jury acquitted the defendant drug dealer - but the case now faces possible retrial. Although she maintained her innocence throughout her trial and insisted that prison would be too difficult for her as an older woman, Judge Turbull stated that the evidence was clear - she was guilty and she herself told us (through the bug in her home). 

UNITED STATES JURY CORRUPTION

    In Pittsburgh, a father plead guilty to jury tampering in his own son's case. While his 1-year-old son was on trial for homicide, 67-year-old English Burton followed a juror to their car and approached them on foot at a red light. He explained that he needed the juror's help and proceeded to shout his phone number at the juror. A sheriff's deputy reported seeing this incident and later that week, the case ended in a mistrial. 

    In 2018, six people were arrested for jury tampering in a double murder trial. Each person had a different role - give names of possible jurors, get money to bribe the jurors, make actual contact with the jurors, and approach the jurors through social media. One of the individuals who contacted a juror through social media was held on $50,000 bond. He sent as least one message to juror offering to pay for a not guilty vote. He was also recorded on jail calls discussing jurors names with defendant in that homicide trial (come on, how dumb can you be?). The defendant and his cell-mate were also believed to have improperly contacted at least one juror. 

          “This is really an attack on the criminal justice system. Nobody             wants this from any side,” Douglas County Attorney Don Kleine             said. Kleine and public defender Tom Reily both filed a motion for             mistrial.

While the trial was rescheduled, the County Attorney considered extra measures to protect the jury. During the trial, the defendant was sentenced to life in prison for murdering a 19-year-old man, as well as three other sentences for weapon charges. 

The judge instructed that the jury tampering charges be heard separately in order to give him a fair murder trial. But, it does not appear that he was in fact tried for the jury tampering charges after receiving his life sentence.  

(I apologize for using the same photo-meme two weeks in a row, just too good.)

What Not to Wear (As a Female Advocate in Front of a Jury)

    Whether we like it or not, physical appearance is a major consideration in the work of a successful trial lawyer. Research has shown that we automatically assign to good-looking individuals favorable traits, like talent, kindness, honesty, and intelligence. Robert B. Cialdini, Influence: Science and Practice 148 (4th ed. 2001). Empirical research confirms that physical attractiveness is a benefit across all life experiences from politics, to education, to the workplace, to the courtroom. See, e.g., id. at 148-50 (citing empirical research studies); Michael J. Saks and Reid Hastie, Social Psychology in Court 156-60 (1978). The savvy litigator will understand these considerations and choose her clothing, jewelry, shoes, and hairstyle accordingly. But what happens when the general advice of "dress conservatively, simply, and inconspicuously" contradicts the essence of a particular advocate's persona, thus damaging her credibility? In her article Beyond a Reasonable Doubt: One Size Does Not Fit All When it Comes to Courtroom Attire for Women, Maureen Howard addresses this difficult question. 

    At the outset of trial, jurors, like judges, opposing counsel, and all other human beings, form quick and lasting impressions of lawyers based on very limited information. See id. To maximize appeal to and reception by a jury, lawyers must seriously evaluate and manipulate their physical appearance, even though expending time and energy on something so superficial may seem to be a poor use of time as trial approaches. See id. Because of factors such as their delayed entry to the workforce, issues surrounding female sexuality in the workplace, and gender bias and stereotypes, superficial issues like choice of dress and jewelry play out with more complexity for female advocates. 

    Traditional trial advocacy wisdom maintains that a lawyer's credibility, integrity, sincerity, and trustworthiness are her most valuable assets with the judge and the jury. See Howard, Gonzaga Law Review, Vol. 45, No. 1, pp. 209-24 at 215. Howard warns that an advocate must be authentic, or at least appear authentic, or jurors will view her as insincere, untrustworthy, and unbelievable. She logically concludes that for a lawyer to be comfortable and confident, and thus appear credible and competent, the lawyer needs to be herself. See id. When a lawyer feels uncomfortably foreign or false wearing conventional trial clothing, her credibility will be undermined to the same extent as her confidence. See id. 

Howard goes on to argue that just as jurors want to do what’s “right” and not decide cases based on “technicalities,” they will better trust the lawyer whom they believe is telling the truth—not a marketable version of the truth. Id. at 16. A lawyer who maintains her integrity in her dress and demeanor and is consistently genuine— consistently herself—is more likely to be perceived as credible and trustworthy. See id. Thankfully, a female advocate's clothing, hair, jewelry, and shoes do not have to be bland or manly. They need only be consistent with the essence of the trial lawyer’s persona, or they will ring false and be off-putting to the jury.