Replacing Deliberating Juror Cure for Outside Contact
In United States v. Elbaz, a jury convicted Ms. Elbaz of wire fraud. On appeal she attacks the trial judge’s failure to declare a mistrial after Juror 9 reported to the court he overheard negative remarks about the defendant during a chance encounter with a bystander in a drugstore during a weekend recess. The juror participated in deliberations thereafter. However, after he realized the drugstore remarks made him change his vote from acquittal to guilty, the juror eventually reported this to the trial judge. After an in-court interview of Juror 9 (and later all other jurors) the judge confirmed the juror did not share news about the drugstore incident with fellow jurors. Nevertheless, the court replaced Juror 9 with an alternate. Elbaz argued to a 4th circuit federal panel that it was error to allow deliberations to continue thereafter. The circuit court rejected defendant’s claim saying the judge’s instruction to the newly constituted jury to disregard prior deliberations and start afresh sufficiently assured the jury was not influenced by the drugstore conversation.
USA Not Alone—Australia Faces Jury Misconduct Issues—and Makes It a Crime!
Since the previous Jur-E Bulletin publication, there have been a series of stories coming from Australia that show incidences of juror misconduct in trials. Here’s a synopsis of them:
- LSJ Online (the Law Society Journal of New South Wales) reports the high-profile rape trial of Bruce Lehrmann (a Parliament staff member) was aborted after an academic research paper on sexual assault was found in the jury deliberation room during a routine, after-hours clean-up of the room. (The trial judge told the jury at least 17 times not to do any outside research.)
- We learn from the Sydney Criminal Lawyers magazine about the highly-publicized case of an 85-year old man accused of killing a woman and burying her in his backyard. His trial was cancelled after a jury member’s girlfriend researched details of the defendant’s past criminal matters and disclosed these to her partner. The magazine notes juror misconduct is a criminal offense, which carries a maximum penalty of five years’ imprisonment. Namely, section 68C of the Jury Act 1977 prohibits jurors from “making an inquiry” for the purpose of obtaining information about an accused, or any matters relevant to a trial except in the proper exercise of a juror’s function.
“Making an enquiry” encompasses: (a) asking a question of any person, including a spouse or family member who is not a juror, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, or (e) causing someone else to make an inquiry. The offence further covers anything done by a juror in contravention of a judge’s direction/s. It does not prohibit a juror from making an enquiry: (a) of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) that is authorized by the court.
- SBS News (Australia’s multilingual and multicultural broadcasting and digital media services network) informs us that University of Melbourne law professor Jeremy Gans wrote a book about a trial in England where the accused was convicted of murdering a husband and wife and jurors consulted a Ouija board during deliberations.
Again, Prospect of a Jury Verdict Leads to Preemptive Plea of Wrongdoing
Some say the imminence of a scheduled jury trial can have the laxative effect of causing a guilty plea or civil settlement. The Mountain View Voice provides another example of that adage. Santa Clara County (California) Sheriff Laurie Smith announced last week she would retire, as a jury deliberated in a civil corruption trial involving jail mismanagement and a “pay-to-play” scheme involving gun permits issued by her office.
North Carolina Litigants Preserve Appeal Rights on Erroneous Jury Instructions Any Time Before Final Deliberations Begin
In State v. Hooper, the North Carolina Supreme Court recently reiterated a decades old rule that a party may not appeal from a trial judge’s jury charge or omitted charge unless a party objects thereto before the jury retires to consider its verdict. In this case, Mr. Hooper preserved his appellate rights by seeking a self-defense instruction (eventually denied) during the charge conference.