Oct 29

final-jur-e headline

Eyes on Charlottesville – Challenges in Finding Impartial Jurors in Prosecution of “Unite the Right” Defendants

Four years after the notorious rally protesting the removal of a Robert E. Lee statue, a civil lawsuit began this week in Thomas Jefferson’s hometown.  The plaintiffs (including four persons struck by the speeding car of a neo-Nazi protester) have brought a civil rights case against the leaders of the white supremacist protest marches (including Jason Kessler, the organizer of the Unite the Right rally; Richard Spencer, who led a torchlight march across the University of Virginia campus; and Matthew Heimbach, a white-nationalist leader with ties to far-right factions in Eastern Europe).  Washington Post reporter Ellie Silverman describes the challenges of selecting fair and open-minded jurors in this modest-sized university town.  Many prospective jurors have been excused for cause by federal judge Norman K. Moon, leaving only a trickle of qualified jurors thus far.  For example, Silverman writes,

The prospective jurors were asked in a questionnaire if they were concerned about prejudice against people who are Jewish, Black, Hispanic and White, or involved in groups including Jewish Community Centers, the American Civil Liberties Union, the NAACP or the Institute for Historical Review, which promotes Holocaust denial.

One juror who works on a farm said in court Monday that "as a community we want to get it behind us and see justice done." In his questionnaire,… the juror indicated he would not be able to overcome preconceived notions about the Unite the Right rally, stating, "These people are terrorists."  In response to the judge’s question, "Do you think you can set aside that opinion?" The juror said, "I’m sorry, but I don’t think I can." 

Lolita Buckner Inniss, the dean of the University of Colorado Law School, who has studied Black Lives Matter and legal history is quoted as saying, "People that express neutrality regarding issues that practically demand a point of view are themselves expressing a point of view.  Given the country in which we live, in 2021, I’m not sure that anyone could in good faith allege neutrality unless at the same time, they are alleging complete absence of knowledge.  What you ideally want is not someone who is a blank slate, but rather someone who has an open mind.”

Convicted Former WV Chief Justice Seeks SCOTUS Review of Jury Misconduct Allegation

The Jur-E Bulletin reported earlier that former West Virginia Chief Justice Alan K. Loughry III’s conviction for numerous fraud and witness tampering charges was upheld when the U.S., Court of Appeals for the 4th Circuit, sitting en banc, ended up being evenly divided whether the defendant should have the benefit of a Remmer hearing by the trial court on issues of juror misconduct.  (In Remmer v. United States, SCOTUS held that a defendant is entitled to a presumption of prejudice and a hearing when he “presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury.”)  Loughry has now filed a cert. petition asking the Supreme Court to reverse the lower courts because he previously offered “substantial circumstantial evidence, including that a juror had shown intense pre-trial interest in Twitter activity that was highly critical of the defendant, had subscribed to the Twitter activity of two reporters who tweeted 73 times about the case during trial, and had accessed social media, including Twitter, multiple times during the six-day trial.”  Loughry’s lead attorney Elbert Lin (a former law clerk to Justice Clarence Thomas) wrote, “Threats to fair criminal trials have evolved markedly in the digital age.  It is now possible for a juror to receive, through a curated feed on a phone that fits in her pocket, extrajudicial information that falls squarely within Remmer’s concerns without leaving any publicly available evidence of the contact….  [Now] more than ever before, criminal defendants are facing extrajudicial influences while only able to provide circumstantial evidence of those influences as grounds for a Remmer hearing.”

“Small Town” Environment Creates Challenges for Jury Selection in Ahmaud Arbery Murder Trial

The trial of three men charged with the murder of an unarmed jogger got underway last week.  USA Today reports on the difficulty of securing qualified jurors from small Glynn County, Georgia, which has 62,000 registered voters.  Of the 1000 summoned jurors, multiple venire members are telling the court they know the victim, at least one of the three defendants, potential witnesses, or local figures who may be mentioned in evidence.  Moreover, several jurors feared personal repercussions after rendering a verdict.  In commenting on this dynamic, University of Texas law professor Jeffrey Abramson suggests in the legal blog Justia that Georgia trial judge Timothy Walmsley might obtain valuable guidance from the oral arguments made to the Supreme Court in the case of the Boston Marathon bomber.  Abramson writes:

In the Boston Marathon bombing trial, the trial judge wrongly limited his examination of jurors to extracting the answer he wanted —“I am impartial.” On appeal, a federal appeals court threw out the marathon bomber’s death sentence, ruling that the judge should have done a more thorough job of screening for bias. The judge should have asked jurors for a specific recounting of what they saw or read in the news. Only after discovering exactly what sort of stories the Boston jurors were exposed to could the judge, and not the juror, have made a proper determination of whether someone who had seen this or that in the news could really put the publicity aside.

Ghislaine Maxwell Jury Selection Likely to Require 600 Jurors & Thanksgiving Holiday Issues

And in yet another high-profile case coming up for trial, Manhattan federal judge Alison J. Nathan faces the challenge of completing jury selection before Thanksgiving Day in the sex-trafficking trial of Jeffrey Epstein associate Ghislaine Maxwell.  Law 360 ($) reports “she is prepared to review as many as 200 potential jurors per day over that period until as many as 60 are qualified by the court to be quizzed in a second round, which will include thorough questioning to suss out potential conflicts or bias in the headline-making case.”  To the consternation of media outlets, defense counsel wants all pre-set voir dire questions sealed in advance of in-court proceedings so that citizens who want to be selected don’t do homework on their answers.  Presentation of evidence in the case is scheduled to begin on the Monday after Thanksgiving.