Arizona Begins Deep Study of Jury System; Focus on Fair Cross-section Compliance
Chief Justice Robert Brutinel last week issued an order creating a task force to collect demographic data on jury composition and to make recommendations related to the selection of jurors. The task force also is supposed to consider whether lawyers’ peremptory challenges of jurors systemically reduce the representation of minorities and whether the peremptory challenge rules should be changed. According to the Associated Press, the task force was created to promote public trust and confidence in the jury system. The task force was ordered to present a report with recommendations to the Arizona Judicial Council by October 1.
“Blabbermouth Juror with a Podcast” Eluded Dismissal During Voir Dire, Now He’s the Focus of an Appeal
Jake Letizia is a freelance editor, standup comedian, and podcaster who was not de-selected from a Manhattan federal jury that convicted Akshay Aiyer of currency manipulation. Despite frequent admonitions from the trial judge to jurors about making outside communications, it was revealed posttrial that Letizia used his weekly podcast (Talkin’ to Myself) to disparage jury duty, the judge, lawyers, and the defendant during the trial. In denying defendant’s motion to vacate the verdict, the trial judge found it significant that Letizia was an attentive juror, his podcasts were hyperbolic exaggerations, had few listeners (100 normally), and did not mention the evidence. The trial court ruling is now on appeal. The New York Times reports Letizia said if he were called again for jury duty, he would have a perfect excuse to avoid it. He would just have to say: “Listen, I have a podcast, and it created a whole mess last time, so you don’t want me on this.”
The Pluses and Minuses of Zoom Trials
Law360 interviewed veteran trial lawyers, a trial consultant, and jurors who participated in virtual trials—one trial was the first virtual trial in the country and lasted almost two months. The interviewees make cogent comparisons of live and virtual trials. For example, consultant Karen Lisko said, “One of the biggest things we found was that the remote jurors said they actually preferred being remote, and that they could be more candid, especially during jury selection. Because they were in their own home, it wasn't as intimidating as a courtroom.”
Conviction Upheld Even Though Juror Failed to Disclose She Knew Defendant, His Girlfriend, and Another Witness
In State v. Strickland, defendant moved for a new trial based upon evidence discovered after the trial. The record shows that during voir dire, the judge asked the potential jurors to raise their hands if any of them had formed an opinion about the guilt or innocence of the accused, if any of them were prejudiced or biased for or against the accused, and if any of them had read or heard about the case. E. H., who made it onto the final jury, did not raise her hand.
The prosecutor then asked if any of the potential jurors “know [Strickland], know who he is, know of him, know his family . . . from any source.” E. H. did not respond, even though she knew Strickland’s girlfriend Megan Hubble. In text messages later disclosed to the trial court, E. H. expressed surprise to Hubble that Strickland was not given a lie detector test. Hubble responded that Strickland had passed a lie detector test and that Mitchell Carter (a mutual friend of the defendant and Hubble) had made false statements during the investigation and “changed [his statements] every time[.]” Hubble also referenced “300 pages” that were never included in evidence, among other things. In the text, E. H. also questioned why the police did not go after Carter instead of Strickland. In one text, Hubble stated that E. H. had “been in” Hubble’s Facebook “since it’s happened,” and “that’s already a mistrial [be]cause [you] had knowledge of the case already.”
On appeal, the Georgia Supreme Court decided Strickland is not entitled to a new trial solely because a juror gave an incorrect response during voir dire. The high court ruled that “to secure a new trial . . . , the defendant must show that the juror failed to answer the question truthfully and that a correct response would have been a valid basis for a challenge for cause. The determinative question is whether there exists bias on the part of the juror which results in prejudice to the defendant” (citation omitted). Assuming that E. H. had been familiar with Strickland, Hubble, and Carter, or any of them, at the time of trial, the court ruled Strickland did not show that, if E. H. had responded truthfully during voir dire, such familiarity would have required her dismissal for cause. “A juror’s knowledge of, or non-familial relationship with, a witness, attorney, or party provides a basis for disqualification only if it is shown that it has resulted in the juror having a fixed opinion of the accused’s guilt or innocence or a bias for or against the accused” (emphasis supplied; citations omitted). The court found Strickland did not show E. H. had such a fixed opinion or bias for or against Strickland. To the contrary, the appellate panel concluded E. H.’s texts are consistent with her having voted to convict based on the evidence presented at trial, despite any familiarity with Strickland or the witnesses, and Strickland presented no other evidence that E. H. was biased against him at the time of trial.
Voir Dire Questioning in the George Floyd Murder Trial—Lessons in Indirection
ABC Eyewitness News in St. Paul, Minnesota reports on an interesting assortment of Q & As from jury selection in the prosecution of former police officer Derek Chauvin. For example, prosecutor Steve Schleicher asked a prospective juror about his interest in sports. “You go to games at the stadium?” Schleicher asked. The juror replied he did and that he had season tickets to the Minnesota Vikings. “Did you watch the Super Bowl last year?” The prosecutor quickly followed up: “There's some people who have decided not to watch NFL football anymore as a sort of a protest of players who had taken a knee during the National Anthem. . . . What are your thoughts about that?” Ellie Krug, an implicit-bias expert and trainer, told the TV station the questions about sports may have been a chance for the prosecutor to connect with the juror on a more human level.