Category: Recent Decisions

SCOTUS Addresses Non-Impeachment Rule in Light of Juror’s Racial Bias

In a recent SCOTUS decision, Pena-Rodriguez v. Colorado, No. 15-606, 580 U.S. ___ (2017) (Court’s PDF), the Court addressed “whether there is an exception to the no-impeachment rule, when after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Justice Kennedy delivered the opinion of the Court holding “that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”

Justice Kennedy reminds us all that racial stereotypes and animus has no place in our justice system. He writes that “our Nation [must] rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”  He further writes that “[t]he duty to confront racial animus in the justice system is not the legislature’s alone,” reminds us that this Court has many times enforced Constitution’s guarantee against state-sponsored racial discrimination in jury system, and concludes that “[a] constitutional rule that racial bias in the justice system must be addressed – including, in some instances, after the verdict has been entered – is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is central premise of the Sixth Amendment trial right.”

Prof. Gershman on Racism in Jury Verdicts

In his most recent post titled How Racism Infects Jury Verdicts, Haub Law School Professor Bennett L. Gershman looks closely at two recent SCOTUS cases – Buck v. Davis and Pena-Rodriguez v. Colorado, both dealing with a blunt situation of racial bias in criminal trials.

In Buck v. Davis, an expert witness testified that the petitioner is more likely to be dangerous because he is Black and in Pena-Rodriguez v. Colorado, one of the jurors allegedly stated that he thought the defendant was guilty because he was Mexican. Both cases are currently before the United States Supreme Court.

Prof. Gershman concludes by saying that

It is almost impossible today to discuss any issue in criminal justice without at the same time discussing the role that race plays at every phase of the process. … given the increasing focus on protecting defendants against wrongful convictions, it is critical that a defendant’s constitutional right to a fair trial before an impartial jury not be corrupted by uniquely pernicious stereotypes promoted either by a purported “expert” witness or a bigoted juror. Both instances are so inflammatory as to destroy confidence in a jury’s verdict.

SCOTUS: Vacated Conviction in Mixed Verdict Case Does not Bar Retrial

Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.

Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.

Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.

Related Readings:

Mens Rea: Does “Deliberate Indifference” Satisfy the Requirement of Knowledge?

Can indifference, even if deliberate, satisfy a criminal statute’s requirement of knowledge? This is the issue raised by the defendant in United States v. Clay, in which a petition for rehearing and rehearing en banc is presently pending. The defendants in Clay were prosecuted  under 18 U.S.C. § 1347(a), which states, in relevant part:

(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody of control of, any health care benefit program,

in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section. 

At trial, the court charged that the defendants could be found guilty based on “deliberate indifference.” The defendant were convicted and the conviction was affirmed by the Eleventh Circuit. See the Brief for Amici Curiae NACDL, Twelve Criminal and Business Law Professors, the Washington Legal Foundation and the Cato Institute listed below.

Related Readings:

Political Corruption Made Easier: McDonnell v. United States

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

On Monday, June 27, 2016, politicians and their friends breathed a collective sigh of relief when the United States Supreme Court unanimously vacated the conviction of former Virginia governor, Bob McDonnell. The decision, authored by Chief Justice John G. Roberts Jr., narrowed the definition of an “official act” and what it means in the context of bribery and honest services fraud. As a result, ostensibly politicians will be able to more freely provide favors to others.

McDonnell and his wife were convicted on charges of honest services fraud and Hobbs Act extortion in connection with their acceptance of $175,000 in loans and gifts from the chief executive officer of a nutritional supplement company. In exchange for the monies, the government alleged that McDonnell committed “official acts” in his capacity as governor, to facilitate Virginia’s public universities to perform research studies on the CEO’s nutritional supplements. The government alleged these “official acts” included hosting and attending events, and contacting and promoting the CEO’s products to other government officials. McDonnell v. United States, 579 U.S. __ (2016) at 10. Although McDonnell was found guilty at trial, the Supreme Court vacated the conviction, which hinged on the definition of an “official act.”

Under 18 U.S.C. § 201, the statute that proscribes the bribery of public officials, an “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.”

First, the Court concluded that the terms “cause, suit, proceeding or controversy,” “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” McDonnell, 579 U.S. __ at 20. The Court held the terms “question” and “matter” are similar in nature to a “cause, suit, proceeding or controversy,” and therefore, cannot be broadly applied. Second, the Court held that the requirement in 18 U.S.C. § 201(a)(3), stating that the question or matter must be “pending” or “may by law be brought,” before “any public official,” suggests that it is a matter “that is relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.” Id. at 22. Therefore, the Court held that “[u]nder that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” Id. at 19.

What does this mean for the future of political bribery and honest services fraud cases? It narrows the reach of the statute. If an “official act” must be a formalized exercise of power, on a question or matter that can be tracked for progress, arguably a politician may now provide favors in a more informal, tempered way. Therefore, McDonnell is likely to positively impact politicians and other government officials who dole out favors to those who provide them gifts and other benefits. Understandably, and especially in our currently unstable political climate, lax interpretations of bribery statutes are not likely to go over well with the public.

On the other hand, however, McDonnell does tenuously open the doors for more honest and free-flowing communications between government officials and the individuals they represent. As Chief Justice Roberts states:

[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns – whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm…. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic recourse.

Id. at 22. While it is safe to say bribery and honest services fraud are exactly what keeps ordinary citizens from “participating in democratic recourse,” McDonnell nonetheless gives politicians and government officials a chance to rise to the occasion. If these types of “unofficial” favors are truly as innocuous as politicians claim, now is the time for them to prove it. Prove it is not simply a quid pro quo. Prove it is not a quick cash grab. Prove it is not only those with wealth and influence that you seek to help. Prove it, as Chief Justice Roberts states, embodies that you genuinely want to appropriately help all constituents.

Related Readings: