Recently in Jury Trial Category

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?

Retrial Following Partially Hung Jury

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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):

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?


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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.

Delaware DP Reinstatement Bill

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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.

Impeaching Jury Verdicts

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

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.

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