Juror Feedback: Jury Service Was Fun, but “Why Isn’t My Asian Identity Listed as an Option on Jury Duty Forms?"
Dr. Noel B. Ramirez is an Asian American social worker in Philadelphia. As he has done several times before, he dutifully showed up for jury service earlier this year. He recently wrote an entertaining op-ed in The Philadelphia Inquirer about his latest experience. He was very happy to experience the orientation conducted by court officer Tanya Covington who “makes jury duty exciting and fun.” (Some call her a civic-minded Bill Murray or the “jury duty lady.” Her presentation is worth viewing here.) However, he goes on to say, “I showed up this year with enthusiasm but instantly, like all the years in the past, I felt a huge wave of disappointment from the jury duty paperwork, specifically with the blank spot with the word “other” where I must fill in the word ‘Asian’ to indicate my racial identity…. This may seem like a small inconvenience or a minor administrative oversight, but for me it felt like another example of the complexity of navigating racial identity in a place that doesn’t see me when I’m standing there in plain sight. Seeing everyone else’s race and ethnicity, except mine, felt both familiar and infuriating, especially during a time where we’ve seen a significant increase in hate against Asian Americans and Pacific Islanders (AAPI), both locally and nationally.”
New York State Unveils Implicit Bias Instructions for Jurors
ABC Channel 13 (WHAM News) in Rochester reports the New York State Court System, in collaboration with the Perception Institute, has created a video on implicit bias for prospective jurors to watch during their orientation process. "Jury Service and Fairness” describes what implicit bias is, explains why the way our brains work can lead to bias and discusses strategies for jurors to use to counter biases as they approach their service. It features Chief Judge Janet DiFiore, Professor Rachel Godsil and Afua Addo of the Perception Institute, which works to reduce discrimination linked to race, gender and other identity differences. “Juries make important decisions that affect many lives and issues of concern to our communities. The Court System’s goal in every jury trial is to seat jurors who will be impartial,” DiFiore said in a statement. “The new juror video, by alerting jurors to the dangers of hidden biases, will serve to promote the fairness of our juries and justice system."
Defendants Seek Information on Juror Attitudes About Ties to Giuliani and Trump
A trial got underway this week in the prosecution of Lev Parnas and Andrey Kukushkin (allies of former NY Mayor Rudy Giuliani) for investor fraud and campaign finance violations. Law 360 ($) reports prosecutors and defense lawyers sparred over a 28-page questionnaire submitted by the defendants aimed at revealing juror attitudes about Giuliani and former President Donald Trump. Three pages seek a breakdown of potential jurors' media diets, asking whether they consume content from right-wing pundits, including Giuliani himself or from outlets, such as One America News, Newsmax and Fox News. It also asks whether jurors saw Parnas' interviews with CNN's Anderson Cooper or MSNBC's Rachel Maddow and Jonathan Capehart. The Soviet-born defendants also want to know whether potential jurors' feelings on "national origin" might cloud their judgment. In an unusual letter filed with the trial judge last week, the defense argued, "Although jurors' political activities and leanings may be a sensitive and personal topic, it is critical to reveal political biases during the jury selection process in a case that deals directly with those issues, like this one. Given the increased political polarization ... it is a virtual certainty that some venire persons will prejudge the allegations against Messrs, Parnas and Kukushkin due to their affiliation with former President Trump and Rudy Giuliani." (At the time of this writing, it is unknown how the judge ruled on questionnaire dispute. The issues raised in the controversy are the main value here.)
Is There a Detrimental Drought of Batson Enforcement in North Carolina?
The North Carolina Supreme Court last week heard oral arguments in the case of State v. Clegg. The defendant appeals from the trial court’s denial of his Batson challenge against the prosecutor’s removal of two Black female jurors. In reporting on the case, journalist Avi Bajpai observed in The Charlotte Observer that in decades since the Batson doctrine was created “North Carolina appellate courts haven’t reversed a single conviction due to intentional racial discrimination against a juror of color, according to a 2016 article in the North Carolina Law Review. By contrast, state appellate courts in Maryland, Virginia, West Virginia and South Carolina — the other jurisdictions accompanying North Carolina in the 4th Circuit of Appeals — have found at least one example of prosecutors striking a minority juror due to their race.” In this context, Gretchen Engel, executive director of the Durham-based Center for Death Penalty Litigation, thinks there’s been a “trickle-down effect” from the lack of Batson enforcement in the Tar Heel State that in turn influences trial judges, prosecutors and defense attorneys, thereby creating an environment in which pursuing a Batson challenge is deemed not worth doing. She thinks, “Given that we live in a pluralistic society, our juries need to reflect that reality,” she said.
“Retired Judges, Former Prosecutors Support Bomber on Voir Dire”
That is the caption for a piece appearing in the National Law Journal’s “Supreme Court Brief” last Wednesday – the day the U.S. Supreme Court heard oral arguments in United States v. Tsarnaev. The article focused on the amicus brief by a bipartisan group of 23 retired federal judges and 19 former federal prosecutors. They are supporting the federal appellate court’s decision that the judge in the trial of the Boston Marathon bomber took the wrong approach to ferreting out potential juror bias from extensive pretrial publicity. The brief asserts, “In this case, the district court—at the government’s behest—departed from the entrenched and uncontroversial practice of asking prospective jurors in high-profile cases about the content of the pretrial publicity to which they were exposed.” They believe asking jurors about the specific content of the information that they have learned is the “norm” in such cases. And they offer the justices four detailed examples of content-specific questioning by trial judges in some of the most publicized trials of the last 30 years.
On the other side, the government is appealing the ruling by the U.S. Court of Appeals for the First Circuit. That court, while affirming 27 of Dzhokhar Tsarnaev’s 30 convictions, set aside the death penalty and remanded for resentencing after finding two trial errors: failure to allow the defense to engage in content-specific questions concerning potential jurors’ exposure to pretrial publicity, and failure to allow the defense, at the penalty phase, to offer mitigating evidence that Tsarnaev’s violent older brother was the mastermind behind the bombings. In their brief, the prosecutors argue “[T]he court of appeals deviated sharply from this Court’s precedents for reviewing federal jury-selection procedures and gave short shrift to the superior perspective and conscientious efforts of the district judge to address pretrial-publicity concerns through individualized interviews rather than inflexible scripts.”