Feb 24

final-jur-e headline

Federal Panel Reconciles Reasonable Doubt Instruction with Jury Nullification Power

In United States v. Lewis, the defendant was convicted of several felonies. On appeal, Dashawn Lewis claims, among other things, the district court erred by giving the 9th Circuit model criminal jury instruction on guilt beyond a reasonable doubt. The last sentence of which provides: “if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.” He argued this sentence is a misstatement of the law and “akin to a directed verdict,” because a jury can acquit a defendant, even though the government proved guilt beyond a reasonable doubt, through nullification. In response, a 9th Circuit panel stated, “Nullification, however, is ‘a violation of a juror's sworn duty to follow the law as instructed by the court,’ and ‘trial courts have the duty to forestall or prevent’ it, including ‘by firm instruction or admonition.’ As such, an instruction to the jury to follow the law—i.e., to find a defendant guilty if convinced of his guilt beyond a reasonable doubt—is proper. [I]t is not generally erroneous for a court to instruct a jury to do its job; that is, to follow the court's instructions and apply the law to the facts. Nor does such an instruction constitute a misstatement of the law, since nullification is by its nature the rejection of such duty. [In a previous case, we explained what a court cannot do: ‘state or imply that (1) jurors could be punished for jury nullification, or that (2) an acquittal resulting from jury nullification is invalid.’ The last sentence of the standard instruction does neither. Here, ‘there was no indication that nullification would place jurors at risk of legal sanction or otherwise be invalid’ nor did the district court “tell the [ ] [jury] that they lacked the actual ability to [nullify].’ Accordingly, the district court did not err, much less plainly err, by providing such an instruction to the jury.” (Citations and internal punctuation omitted; emphasis in original.)

North Carolina Supreme Court Considers Prosecutor’s Use of “Cheat Sheet” to Strike Black Jurors

Earlier this month, the N.C. Supreme Court heard oral arguments in multiple cases challenging the excusal of Black jurors in death penalty cases. The NC Policy Watch tells us about the case of Russell Tucker, who is on death row for murdering a Kmart employee. The record in that case shows the Forsythe County prosecutor (and perhaps other state DAs in other cases) used a pamphlet guiding prosecutors on how to defend against Batson challenges to their elimination of Black jurors. Suggested guidance included using explanations like the juror showed a “resistance to authority,” held “anti-prosecution tendencies,” and did not maintain eye contact. In Tucker’s case, Elizabeth Hambourger, an attorney with the Center for Death Penalty Litigation, told the Supreme Court justices, “When asked to give his true subjective explanations for removing Black jurors, the prosecutor read his answers off of the training document.”

How to Address Juror Refusing to Deliberate

In Commonwealth v. Ronchi, the Supreme Judicial Court of Massachusetts faced the question of whether a trial judge properly dismissed a deliberating juror after the foreperson reported “one juror is not able to productively contribute to deliberations.” Before discharging that juror, the court interviewed her with participation of the attorneys and avoided learning anything about the content of deliberations. The judge also elicited the agreement of the attorneys and the defendant directly that the juror should be dismissed. However, on appeal, Mr. Ronchi claimed the judge did not follow Massachusetts caselaw requiring a trial judge to inform a juror before they are discharged “that she could not be discharged unless she had a personal problem unrelated to her relationship with other jurors or their views of the case.” The defendant maintained this error created a substantial likelihood of a miscarriage of justice. In response, the high court stated, “defense counsel requested the discharge of juror no. 12 and objected to her remaining on the jury. The defendant has not pointed to any prejudice, however, from the assented-to discharge of juror no. 12 beyond speculation that ‘she was a dissenting or hold-out juror, leaning towards a manslaughter verdict.’ We therefore conclude that there was no substantial likelihood of a miscarriage of justice.”

Some Jurisdictions Moving Toward Raising Jury Stipends

In Texas, Harris County (Houston) District Clerk Marilyn Burgess informs us about legislation “that would increase Juror pay from $6 to $20 on the first day and from $40 to $58 on subsequent days. It is less than what we asked our local Commissioners Court to do in 2020—but if we can get that passed at the state level then we can again lobby locally to increase the local portion. We are working diligently with the legislature to get the jury pay bill passed and are hopeful that we accomplish this important first step.” (See ABC 13 Eyewitness News for more information.

In Indiana, PBS radio station WFYI Indianapolis reports some Indiana courts have struggled to get people to serve on juries in recent years, hurting juror diversity and, in some cases, forcing judges to declare mistrials. In response, some lawmakers hope raising jury compensation might help. HB 1466 passed a state house committee last week with strong bipartisan support from lawmakers and court officials. It would double the current $40 per day stipend and go up to $90 per day after the sixth day of trial. Daviess County Prosecutor Dan Murrie testified it’s gotten “harder and harder” to find jurors over the last decade. The pay increase could help get juries that represent “a good cross-section” of the community, he said, but he’s not sure it’s enough.*

*We remind readers that NCSC publishes “Juror Compensation in the United States,” a comprehensive list of juror stipend levels in every jurisdiction.