Jul 15

final-jur-e headline

Ontario High Court Rejects Trial Judge Efforts to Create a Gender-Balanced Jury

Concern for promoting demographically diverse juries is not limited to American courts. In the case of Her Majesty the Queen v. Azzi, the Court of Appeal for Ontario addressed the legality of a trial judge’s invocation of a relatively new statutory provision to replace two men on a jury with two women during a final stage of voir dire. In 2019 the Canadian Parliament enacted a law to abolish peremptory strikes and authorized trial judges to remove jurors “for reasons of . . .  maintaining public confidence in the administration of justice.” In the Aziz case, the trial judge in open court consulted with the prosecutor and defense counsel regarding his inclination to create more gender balance in the new jury panel by replacing two men with women. Over objection of the defense, the trial judge made this ruling:

One of the ways in which the Government has left open the achievement of a representative and fair jury, and therefore, an impartial tribunal, is extending to trial judges the discretion to stand aside candidates if it is deemed in the interest of justice to do so. A jury is founded on the notion that members of the community, when polled more or less at random, will bring together such life experiences and perspectives as to be able to do justice to a given case. Obviously, the random nature of selection will fall short, each and every time, of precisely reflecting the community. But as a general proposition, my view is the Court should try as best it can to select a jury that represents the community in which this alleged event is said to have happened. I am going, in the circumstances, to exercise my discretion, because it seems to me that a jury that is overwhelmingly represented by one gender so misses the representativeness mark that I ought to intervene, as Parliament has allowed me to consider doing.

Citing a recent decision by the Canadian Supreme Court, the Ontario panel ruled that the gender-balancing efforts of the trial judge were prejudicial to the defendant because the entire colloquy among the lawyers and judge and the ultimate ruling were undertaken in the presence of the already selected jurors. The appellate judges decided this likely turned the attitudes of some of the women on the panel against the objecting male defendant.

Amber Heard Urges New Trial Against Johnny Depp Because the Wrong Juror Showed Up for Jury Duty

Yahoo! News is among several media outlets reporting that the legal team for actress Amber Heard is asking for a mistrial to be declared in the defamation lawsuit involving Johnny Depp. She alleges an un-summoned juror was seated on the jury that awarded a huge verdict against her. Specifically, Heard argues seated juror number 15 was not the individual who was summoned by the court and, hence, “could not have properly served on the jury at this trial.” The “Jury Panel List” included an individual who had a date of birth in 1945, meaning the individual would have been 77 years old during the trial. However, an individual who is 52 years old and lives at the same address as the 77 year old was the person who appeared for jury duty and sat on the jury. Heard’s lawyers say, “The individual who appeared for jury duty with this name was obviously the younger one. Thus, the 52-year-old sitting on the jury for six weeks was never summoned for jury duty on April 11.” (Our law professor readers may want to use this fact pattern in an upcoming student exam.)

Kansas Juror Touts the Value of Elders and Younger Persons Serving Together on Juries

The Topeka Capital-Journal features Connie Mason Michaelis’s ah-ha experience of voir dire in which 50+ year-old persons joined others of every age, shape, size, and color in a courtroom. She writes:

As I was sitting there, . . . I asked myself if I were before a jury for some crime, would I rather have a jury of all older people like myself, or would I prefer an entire jury of people under 25? I honestly thought that a young jury might be more sympathetic. On the other hand, a jury of my peers might have a higher expectation of me. The more I thought about it, the more I concluded that there is a good reason for diversity, especially with age. The idea of vigorous debate would be put to the test. Older people would be compelled to listen to the young, and young people would, by necessity, listen to the old. I leave you with a question. Who do you think would make a better juror, an older person with age, experience and perhaps wisdom on their side? Or would a young, fresh, impartial and unbiased person be best? It’s impossible to know because we can’t stereotype people, but it makes an interesting point.

In the end, I was not selected. So, it was a mixture of relief and total rejection, but I’ll be back sometime to represent the older population. After all, it is my way of defending democracy.

Jury Appreciation Week Video Cited as Reason to Declare a Mistrial

KHOU-11 in Houston reports that a mistrial was declared because, during an aborted, two-week trial, a “Jury Appreciation Week” program at the courthouse included speeches encouraging jurors to find justice for victims’ families with no obvious mention of defendant rights. Caveat emptor, jury managers.

Juror Stress in Mass Murder Cases

Terrence Spencer with the Associated Press describes varieties of emotional distress in two notorious murder cases—the Beltway sniper case in the Washington, D.C. area and the Marjory Stoneman Douglas High School mass shooting case in Florida. The author also contrasts posttrial stress of novice citizen jurors with trial professionals like judges and lawyers.