Dec 10

final-jur-e headline

Confederacy D├ęcor in Jury Deliberation Room Causes Verdict Reversal

A Tennessee court overturned an all-white jury’s guilty verdict for aggravated assault in a domestic dispute against Tim Gilbert, a Black man.  Yahoo! News reports the appellate panel unanimously found that a deliberation room maintained by the United Daughters of the Confederacy (UDC) created an environment prejudicial to Mr. Gilbert.  Court documents disclosed the label “U.D.C. Room” was painted on the entrance door with a Confederate flag on the door’s window. There was also a framed Confederate battle flag on the wall facing the entrance along with portraits of Confederate officials, including Jefferson Davis labeled “President Jefferson Davis.”  Judge James Curwood Witt Jr.’s opinion cited the Confederacy’s Articles of Secession in finding the Confederate symbols to be racist.  He further stated, “When a government creates or permits the creation of a permanent display by a private organization, it has engaged in government speech.”

Can I Skip Jury Duty Because of COVID Fears?

If you like to chew on “The Ethicist” column in the weekly New York Times Magazine, next Sunday you’ll see a question posed by a prospective juror who is nervous about showing up for jury duty in a federal court.  The questioner filled out the qualification questionnaire by answering affirmatively to the question, “Would your concerns about Covid interfere with your ability to focus on the trial?” The concerned citizen tells the Ethicist, “I want to serve my community by continuing to be healthy and safe and helping others to do the same. Yet the conflict of personal decision versus civic responsibility still lingers. What’s your take on this dilemma?”  Wait until Sunday or see the Ethicist’s response here.

New Unanimous Jury Verdict Rule Leads to Prisoner Release – Despite Non-Retroactivity Doctrine

In the aftermath of the SCOTUS decision last year in Ramos v. Louisiana declaring non-unanimous criminal convictions unconstitutional, Law 360 recounts how a team of attorneys with Alston & Bird LLP working jointly with the Promise of Justice Initiative in New Orleans secured the release of Trent Wells, who was convicted by a 10-2 jury vote of rape and sentenced to 50 years in prison.

Wells, who professed innocence all along, refused to plead guilty in exchange for a 25-year prison sentence. He ended up spending most of his life locked up at the Louisiana State Penitentiary (AKA Angola)—a prison known for its history of violence and that hosts the state's death chamber. For 18 straight years, Wells was confined in a one-man cell that was 8 feet wide and 10 feet long for 23 hours a day.

Early this year, with a newly elected Orleans Parish DA having pledged to work with the Promise of Justice Initiative, the Orleans Parish Criminal District Court vacated Wells’s conviction.  This was months before SCOTUS ruled in Edwards v. Vannoy case that the Ramos doctrine does not apply retroactively.  Nevertheless, the DA decided not to retry Wells on the rape charge in exchange for a guilty plea to misdemeanor burglary.

Holmes Case Jury Instructions Criticized

As evidence is wrapping up in the fraud prosecution of Theranos CEO Elizabeth Holmes, her defense attorney Amy Saharia urged the court to reject the prosecutor’s proposed jury instructions.  Law 360 ($) reports Saharia argued the instructions don't do enough to explain the presumption of innocence and "beyond a reasonable doubt" standards. She also asked the judge to separate jury instructions describing allegations of conspiracy to defraud investors and conspiracy to defraud patients, saying it's too confusing to lump the charges together in the instructions because they're different alleged schemes.  In response prosecutor Kelly Volkar argued breaking out what would be one instruction into "10 to 15 pages and adding significant detail" is unnecessary because the government's proposed instructions are either modeled off the Ninth Circuit's instructions or they've been used in recent criminal cases in the district and are "tried and true." Volkar also emphasized that jury instructions should be concise and clear and not serve as long legal treatises.

Is the Pandemic Producing More Conviction-Prone Juries?

Some in the defense bar answer affirmatively.  Washington Post journalist Radley Balko cites polling evidence consistently showing strong correlations between political ideology and attitudes about COVID—suggesting that citizens who are wary of COVID infection tend to be liberal and less willing to participate in jury duty.  Balko interviewed numerous criminal defense lawyers who hypothesize COVID-conscious people are being excluded from juries, either through self-selection or with dismissals by judges.  Hence, they worry pandemic-era jury panels are more conservative, less skeptical of police and prosecutors, and thus are more likely to convict.