Recently in Jury Trial Category

Regrettably, an essential issue in the case was barely mentioned. The attorney for McKinney said, "This Court's decisions in Ring and Hurst require a jury sentencing." That is wrong, yet the attorney for Arizona completely failed to challenge it. The consequences could be catastrophic.

In an earlier time, convicted defendants were regularly sentenced to long prison terms with eligibility for parole well before their time was up. Parole came with conditions (like, e.g., don't go back, Jack, and do it again). Parole could be revoked for violation of the conditions, and the violators could be sent back to prison. Because he was going back to serve out some portion of his original sentence for the original crime, the violation did not have to be found by a jury or proved beyond a reasonable doubt.

In Hurst v. Florida (2016) the U.S. Supreme Court decided that Florida's death-sentencing system was invalid because the jury did not have to be unanimous in finding the "aggravating circumstance" that made a case eligible for consideration of the death penalty.  Decades earlier, the high court had considered precisely the same question and decided that the judge's independent finding of the needed fact was sufficient.  So much for precedent and reliance.

What about cases where the jury was unanimous, even though not instructed that it had to be?  The Florida Supreme Court has affirmed the judgments in such cases, and today the U.S. Supreme Court declined to review two more of them:  Middleton v. Florida, No. 17-6850 and Tundidor v. Florida, No. 17-6735.  Justice Sotomayor, joined by Justice Ginsburg, dissents on the ground that the jury was told that its role was only advisory.

Justice Breyer also dissents based on his view that the jury must be unanimous on the final sentence, not just the eligibility determination, and that this is required by the Eighth Amendment, not the Sixth.  The unanimity requirement has been embraced by the high courts of Florida and Delaware, but basing it on the Eighth Amendment is an idiosyncratic view of Justice Breyer. 

I also wish the high court would take up a case on unanimity in the selection decision, as distinguished from eligibility, to confirm that the Alabama's Supreme Court is right and that Florida's and Delaware's are wrong.  What are they waiting for?  This case isn't the vehicle, but they have passed on some good ones.

Last November, I noted the introduction of H.R. 4493 by Pennsylvania Congressmen Marino and Barletta.  This bill would eliminate the nonsensical "single-juror veto" system in the penalty phase of federal capital cases, replacing it with a true unanimity requirement where the jury must be unanimous one way or the other, as in the guilt phase.

On Wednesday, Senators Toomey, Cotton, Cornyn, and Cruz introduced a parallel bill in the Senate, S. 2389.

Death Penalty Focus is predictably unhappy.  They quote a capital defense lawyer warning in grave tones, "Obviously, this bill would invite a lot of constitutional scrutiny."

Seriously?  California has had this law since 1978.  That's eight years of review by the California Supreme Court under the reign of the notorious Rose Bird followed by over 30 years of scrutiny by the federal Ninth Circuit.  If two of the most vehemently anti-death-penalty courts in American history haven't found a constitutional problem with this law in four decades, doesn't that indicate it is quite solid?

When a jury convicts on one charge and hangs on another, what should the court tell the second jury about the first case?  The California Supreme Court decided yesterday in People v. Hicks, S232218, that it is error to tell the jury specifically about the prior conviction, but the court may instruct the jury upon request:

Sometimes cases are tried in segments. The only question in this segment of the proceedings is whether the prosecution has proved the charge of murder. In deciding this question, you must not let the issue of punishment enter into your deliberations. Nor are you to speculate about whether the defendant may have been, or may be, held criminally responsible for his conduct in some other segment of the proceedings.

Opinion by Justice Chin (6-1), Justice Liu dissenting.

The Sixth Amendment guarantees "an impartial jury of the State and district whereof the crime shall have been committed."  It doesn't say anything about them being awake.  Nicole Hong reports for the WSJ:

The right to a jury trial is a pillar of America's justice system, enshrined in the Constitution from a tradition dating back more than 1,000 years.

The problem these days is making sure jurors stay awake.

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"From time immemorial, jurors have been falling asleep because from time immemorial, lawyers have been boring," says John Gleeson, who was a federal judge in Brooklyn for 22 years. "We're the dullest people in the world, for Christ's sake."

A quadruple murderer whom 11 out of 12 jurors believed should be executed has been let off with life in prison due to the state's ill-conceived single-juror veto law.  AP reports (emphasis added):

NEW PORT RICHEY, Fla. -  A Florida man convicted of killing his ex-girlfriend, her new boyfriend and her parents has avoided the death penalty.

The Tampa Bay Times reports 11 of 12 jurors voted Tuesday for 32-year-old Adam Matos to be executed, but without unanimous agreement, Matos automatically received a life sentence. The jury convicted him last week of four counts of first-degree murder.

Authorities say Matos fatally shot Megan Brown and her father, Greg Brown, at their Hudson home in 2014. He also fatally beat Margaret Brown and Nick Leonard with a hammer, jurors heard.

When the Hurst-fix bill was going through the Florida Legislature, I told everyone who would listen that a single-juror veto system (1) is not constitutionally required; and (2) will lead to arbitrary results and miscarriages of justice.  Nobody was interested.  This is the result.

Once more, with feeling, the right way to do it is the way Arizona and California do it.  The jury must be unanimous one way or the other to reach a verdict, just like in the guilt phase.  If the jury hangs in the penalty phase, declare a mistrial and empanel a new jury, just like in the guilt phase.  Why can't everyone who isn't dead set against the death penalty see that?

Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

Last August, the Delaware Supreme Court seriously misinterpreted the U.S. Supreme Court's decision in Hurst v. Florida.  In this post at the time, I asked, "Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?"  Regrettably, the answer was no.

A bill to "fix" the system that isn't actually broken has passed out of committee to the floor of the House, Ian Gronau reports for the Delaware State News.  A floor vote scheduled for today has been postponed and is expected Tuesday, WMDT reports.

Regrettably, the bill would adopt what I call a "single-juror veto" law as opposed to a true unanimity law.  Single-juror veto laws have resulted in gross miscarriages of justice, including the Aurora theater shooting case in Colorado and the Carnation murders in Washington State.  See also this post.

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.