Sept 24

final-jur-e headline

“Ohio Counties Want Unvaxxed Jurors Out of Opioid MDL Trial”

That’s the title of a story in Law 360 ($*). Thanks to the use of pretrial questionnaires, the parties in this bellwether, multidistrict litigation now can preview prospective juror attitudes about serving on a complex, lengthy trial.  As a result, plaintiff attorneys representing Trumbull and Lake counties filed a brief urging the trial judge to only authorize vaccinated persons to be jurors.  Their brief asserted, "A significant number of potential jurors indicated on their questionnaires that they would not feel comfortable or safe serving on a jury with unvaccinated individuals.  If they were forced to do so, they would likely be distracted and focusing more on their own anxiety than on the trial itself."  In addition, the attorneys argued members of the jury contracting COVID-19 could increase the chance of a mistrial.  They also said that excluding anyone who is unvaccinated from the jury would not violate the fair-cross-section requirement.  The attorneys examined characteristics of the questionnaire responders and concluded the venire “reflects a significant cross-section of the community and does not demonstrate that it discriminates against any particular demographic."

Editorial Urges New Jersey Legal Community Seriously Reexamine Use of Peremptory Strikes

We recently reported on the decision by the Arizona Supreme Court to abolish peremptory strikes in all jury trials commenced in 2022.  The Bulletin has also covered the increasing number of states that are assessing whether their jury selection practices adequately protect citizens from racial and gender discrimination.  New Jersey is one such state.  Its state supreme court in State v. Andujar, 247 N.J. 275 (2021) called for a comprehensive review of the jury selection process and asked the director of the Administrative Office of the Courts to arrange for a Judicial Conference on Jury Selection this fall to explore the nature of discrimination in the jury selection process. It then added, "The Court invites the legal community as a whole to take part in a probing conversation about additional steps needed to root out discrimination in the selection of juries."

Now, the editorial board of the New Jersey Law Journal ($) is promoting the supreme court’s initiative to evaluate the use of peremptory strikes.  Specifically, the board wrote, “We take to heart the court's entreaty that the legal community be willing to engage in a ‘probing conversation’ and not summarily close off serious discussion merely due to the ancient provenance and engrained tradition underlying the practice.  It is undeniable that the peremptory challenge has a long history, and that many conscientious lawyers have used their skill in assessing venire persons for hidden bias as one of the most effective tools available to protect their clients' interests in a fair tribunal. On the other hand, there is little doubt that the same tool in less honorable hands can sometimes inject the scourge of racism in jury selection that is inconsistent with our profession's laudable commitment against such discrimination, particularly in the criminal justice system.  We acknowledge that there is no practice in our legal system that is immune from the possibility of misuse but concentrating the power of jury selection through unilateral use of the peremptory challenge is not a typical tool.  Again, all we can call for at this point is an open mind and a willingness to discuss the issue without purely reflexive opposition to change.”

Scott Peterson’s Death Sentence Vacated Before Resolution of Jury Misconduct Allegations

TV channel KTLA5 in Las Vegas reports California Superior Court Judge Anne-Christine Massullo this week decided to re-sentence Peterson in November to a life term with no chance of parole. She is doing so before deciding whether he deserves a new trial over alleged juror misconduct.  (The California Supreme Court overturned Peterson’s death sentence last year because jurors who personally disagreed with the death penalty but were willing to impose it were improperly dismissed.)

In a separate matter, Peterson’s lawyers are seeking a new trial on allegations a juror committed misconduct by falsely answering questions during the selection process. They assert the woman, who coauthored a book on the case, eagerly sought to be a juror in the case and did not disclose she had been a crime victim.  The woman known as Juror 7 did not reveal during jury selection that she had been beaten by a boyfriend while pregnant in 2001. She also didn’t disclose that during another pregnancy she had obtained a restraining order against a boyfriend’s ex-girlfriend, whom she feared would hurt her unborn child.

The judge denied a defense request to take depositions of the juror and witnesses to those crimes against her but said she could be questioned during an evidentiary hearing.  The juror, however, said she won’t testify at a hearing unless she is granted immunity from prosecution on a possible perjury charge.  If not, she will invoke her Fifth Amendment right against self-incrimination.

New Book on Juries – A Global Perspective

Jury gurus Sanja Kutnjak, Shari Diamond, Nancy Marder, and Valerie Hans have coedited a new book called Juries, Lay Judges, and Mixed Courts: A Global Perspective. The Cambridge University Press link is here.

Nominate an innovator in jury operations

The Center for Jury Studies is accepting nominations for the G. Thomas Musterman Award for Jury Innovation, which recognizes states, local courts, individuals, or other organizations that have made significant improvements or innovations in jury procedures, operations, or practices. The nomination deadline has been extended to October 15, 2021. Email nomination letter, as well as submission form, to Greg Mize.

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