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Impeaching Jury Verdicts

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After a jury has delivered its verdict and judgment has been entered, can that judgment be attacked with juror affidavits about what went on during jury deliberations?  The general rule, going far back into history, is no.  Jurors should be free to engage in uninhibited discussion of the case, without worrying about being interrogated about what was said during that deliberation.

The case of Peña-Rodriguez v. Colorado, No. 15-606, put this rule to a stress test.  In this case, the defendant was charged with "unlawful sexual contact, and attempted sexual assault on a child" for assaulting two teenage girls in a restroom.  One juror held stereotypical views of how Mexican men treat women.  Colorado adheres to the traditional strict view of the no-impeachment rule.  Does the Constitution require piercing the veil in these circumstances?  The Colorado Supreme Court said no, 4-3.  Today the United States Supreme Court said yes, 5-3.

Justice Kennedy assures us that this exception is a narrow one.  We've heard that before.
The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.

Rex Tillerson's Jury Service

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I know next to nothing about Secretary of State-designate Rex Tillerson, but I found encouraging this story about his jury service in a case concerning  sexual assault on a child.  The short article is written by a person who says he did not vote for Trump.

Justice for the littlest victims

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Cameron Morrison was only 19 months old, but had suffered more catastrophic injuries than any person should ever ensure in an entire lifetime.  Cameron's mother's boyfriend, Darnell Deangelo Dorsey, was babysitting Cameron and his half-brother while their mother was at the gym.  When she returned home and found Cameron unconscious, Dorsey claimed that Cameron had "possibly choked on some food" and he had "shook and slapped the boy in an attempt to revive him."  Cameron died after being taken off of life support a few days later as a result of a severe traumatic brain injury due to blunt force trauma.  At the time of his death, Cameron's brain was so swollen there was "virtually no space between the brain and the skull."  Scans also showed Cameron had 18 rib fractures in various stages of healing, a lacerated liver, subdural hematoma, retinal hemorrhages, lung contusions, and hemorrhaging to his adrenal glands.  All the experts agreed that Cameron did not choke on food.  But rather had suffered blunt force trauma to his head and body that was inflicted while he was in Dorsey's care.

Yesterday, after an 8-week trial, Dorsey, who had a prior violent "strike" offense, was convicted by a jury of killing Cameron.  Yolo County Deputy District Attorney Michelle Serafin said, "At great sacrifice, the jurors dedicated eight weeks to finding justice for Cameron. Overwhelming evidence was presented to the jury thanks to the thorough investigation of the medical professionals at UC Davis Medical Center and the Davis Police Department. The hard work and dedication of the jurors, the doctors and the police officers is deeply appreciated by Cameron's family."

Dorsey's sentencing hearing is scheduled for December 2nd where he faces the possibility of 50 years to life in state prison.  A press release from the Yolo County District Attorney's Office can be found here.


When Hurst v. Florida was decided earlier this year, I wrote a post titled Dangerously Sloppy Language in the Hurst v. Florida Opinion.  Sure enough, four of the five justices of the Delaware Supreme Court have now decided that the state's long-established and thoroughly vetted death penalty statute is unconstitutional.  That would be true only if one sloppy piece of obiter dictum wipes out the distinction between the eligibility decision and the selection decision crafted over decades and clearly set forth in numerous U.S. Supreme Court opinions.

The case is Rauf v. State.  See Justice Vaughn's dissent for the correct answers.

Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?  Let's hope so.

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
Following up on my earlier post, here is a second draft of amendments to Florida Statutes.  I have rearranged and expanded some of the provisions and also added comments explaining some of the language.

Another issue is what to do about the existing judgments.  I have some thoughts on that, also, but I don't want to delay the publication of this proposal.
Update:  See the follow-up post, regarding an execution in Alabama which the Supreme Court allowed to go forward even though the murderer was making a Hurst claim.

Throughout the United States Supreme Court's modern capital punishment jurisprudence, it has clearly distinguished two separate determinations to be made in capital sentencing.  The difference is explained in, among many other cases Tuilaepa v. California, 512 U.S. 967, 970-971 (1994):

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U. S. 584 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase.
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We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Different requirements apply to these two decisions.  Most pertinently here, Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002) very explicitly confines its jury trial holding to the eligibility decision, i.e., the finding of at least one aggravating circumstance, and not to the weighing or the ultimate penalty decision.

Did the Supreme Court in Hurst v. Florida throw away the distinction between these two decisions that it has so carefully constructed and explained over so many years?  Some people are claiming it did.  I find that inconceivable, particularly since just a week later the Court reasserted the distinction in Kansas v. Carr, an opinion joined by eight Justices, including six who joined the Hurst opinion.

Yet the people making that claim have some sloppy language in the Hurst opinion to back them up.
In 1976, the U.S. Supreme Court reviewed and approved the Florida system of capital punishment in Proffitt v. Florida.  In that system, the jury enters the verdict of guilt of first-degree murder and makes a recommendation on sentence, but the trial judge makes the final decision on sentence and makes the essential finding that at least one "aggravating circumstance" exists.

The Florida Supreme Court added a gloss that the judge's "override" would, in practice, only work in one direction.  A jury recommendation of life in prison was essentially final, while a jury's recommendation of death could be overridden.  The Florida system is thus more favorable to the defendant than leaving the decision to the jury alone.

Over the years, the Supreme Court more than once rejected claims that this system or the similar systems of other states violated anything in the Constitution.  Then in the 2002 case of Ring v. Arizona, the Supreme Court stabbed the states and the people in the back and simply changed its collective mind, accepting the argument it had previously, unequivocally rejected.  Stare decisis, the principle of observing precedent, was thrown overboard, and the decision did not even mention the massive reliance of the states on the earlier decisions.

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring, a foolish and unnecessary risk.  In most capital cases the existence of at least one aggravating circumstances is perfectly obvious, and there is virtually no cost in having the jury go ahead and make the finding.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine.  The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media.  Some background to the story:

The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.
Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.

Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.
Here is some of what Judge Stevens had to say on Facebook:
The US Supreme Court took up two criminal cases today.  The first is Foster v. Humphrey, No. 14-8349, a Georgia capital case in which the defendant was convicted of the murder of a 79-year-old widow, Queen Madge White.  The evidence showed she had also been sexually molested with a salad dressing bottle.  The claim is racial discrimination in use of peremptory challenges, i.e., a Batson v. Kentucky claim.

The State's Brief in Opposition is here.

The Court also took up a federal case, Lockhart v. United States, No. 14-8358.  The question relates to sex offenses triggering a mandatory minimum under federal sentencing law.

The Court decided three civil cases.

Generally in May and early June the Supreme Court announces opinions only on Mondays (and the Monday-like Tuesday after Memorial Day), so we expect opinions again on Monday, June 1.

The One Juror Veto Rule

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Guest post by Ian:

As Kent has explained, most death penalty States and the Federal Death Penalty Act (as interpreted by the Supreme Court) require the jury to unanimously agree on the sentence in a capital case, but if the jury fails to agree, the judge is required to impose a prison sentence (usually some form of a life sentence). See Jones v. United States, 527 U.S. 373, 380-381 (1999) (interpreting 18 U.S.C. Section 3594 to require that the court impose a prison sentence if the jury deadlocks on the death sentence and rejecting a lower court interpretation that a penalty phase retrial is authorized when the jury is deadlocked on the sentence). This in effect amounts to giving one juror the power to veto any death sentence by causing a deadlock on the sentence verdict (i.e., the single-juror veto rule) and thereby requiring the court to impose a prison sentence since the laws in those jurisdictions prohibit penalty phase retrials because of hung juries.

Many states have a requirement that the penalty phase jury must be unanimous.  In some, including California and Arizona, that means that if the jury cannot reach unanimous agreement, at least on the first attempt, a mistrial is declared and a new jury is formed.  In others, deadlock means the defendant gets a life sentence, even if that means the view of one juror has prevailed over the views of the other eleven.

I have noted many times on this blog that I think the "single juror veto" system is nuts, and states that have it should get rid of it.  Yet legislation being considered in Florida would actually go the opposite direction, adopting this system in a state that does not presently have it.

It is all well and good for the Florida Legislature to tweak that state's system to eliminate any doubt that it complies with the Supreme Court's 2002 decision in Ring v. Arizona, an issue the high court has taken up in Hurst v. Florida.  See this post.  But there is no reason to adopt single-juror veto of the ultimate penalty decision in the process.
Guest post by Ian:

Today the U.S. Supreme Court granted review to determine the constitutionality of Florida's capital sentencing procedure because that procedure involves findings as to aggravating circumstances by the court after a majority of the jury recommends a sentence in a capital case. The U.S. Supreme Court specified the question for review as: "Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002)." Hurst v. Florida, 2015 WL 998606 (no. 14-7505) (March 9, 2015); opinion below, 147 So.2d 435 (Fla. 2014).

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.
The U.S. Supreme Court today decided Warger v. Shauers, No. 13-517:

Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict." The question presented in this case is whether Rule 606(b) precludes a party seeking a new trial from using one juror's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire. We hold that it does.
This is a civil case, but the interpretation of FRE 606(b) will control in federal criminal cases as well and will be persuasive authority in states with similar rules.  The Court rejects the claim that the rule amounts to an unconstitutional denial of the right to an impartial jury but notes in one of those infamous, hedging footnotes:

3 There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.
The opinion is by Justice Sotomayor, unanimous.

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