Tagged: jury deliberations

A Recent Decision: Fatally Improper Conduct Between Deliberating Jurors

While the jury deliberation process remains safely secret in our system, there are limits to what jurors can do and say to each other in the deliberative process when that process spills over into the courtroom. Federal District Judge Kimba Wood recently granted a petition for a writ of habeas corpus  to a defendant in a case where a Bronx trial judge refused to investigate claimed racial bias among the deliberating jurors that was brought to his attention during deliberations.

In the underlying murder trial, the jury was in its third day of deliberations when a juror sent a note to the judge saying he had been called a racial epithet and felt as if he were being forced to agree with the other jurors. A second juror asked to have deliberations suspended until the following Monday due to overwhelming tension in the jury room. On Monday, the first juror sent another note saying he was exhausted and could no longer be objective. The judge declined defense counsel’s request for an in camera interview of the individual jurors, encouraged the jurors to continue deliberating, and sent them back. Three days later the jury convicted the defendant of manslaughter and he was sentenced to serve 20 years in prison. The Appellate Division affirmed, finding that the error had not been preserved, and the court of appeals denied leave. The magistrate judge issued a report advising that the habeas petition be denied because of the same procedural default.

Judge Wood disagreed. She held that defense counsel’s objection placed the trial court on notice of the constitutional basis for his objections. Thus, the state’s contemporaneous objection rule “served no legitimate state purpose.” On the merits, the Court found that the case was one of first impression in the Circuit – Whether Federal Rule of Evidence 606(b) which bars inquiry into the validity of a verdict, prohibits jurors from testifying about statements during deliberations. The court found that the policy behind the rule – preventing the badgering of jurors by a losing party and endless litigation – does not bar the reviewing court from considering such statements when they are brought to the court’s attention before the verdict is returned. The court held that the defendant was denied a fair trial because, on the basis of a verbal racist assault, which was evidence of actual bias – deprived the defendant of his right to an impartial jury.

Related Readings: 

Scrutinizing Verdicts

Two recent events overlap to raise a question about rendering of verdicts after trial. In Warger v. Schauers, the US Supreme Court recently heard oral argument about whether a civil plaintiff can move for a new trial based on information about something that occurred during jury deliberations that ended in a defendant’s verdict. The case raises the seemingly settled question about whether  the courts and the public and the parties can have access to information about what happens in a jury room during deliberations. The current answer is a resounding no, and, based on press and opinion, the Supreme Court does not seem likely to change that.

In Warger, the plaintiff sought to rely on information that the forewoman had stated during deliberations that her daughter had been at fault in an auto accident and that her life would have been ruined if she had been sued. Apparently, the forewoman had made no mention of this during voir dire. The plaintiff relied on this information to seek a new trial, arguing that the forewoman had been dishonest and should not have been seated on the jury. The lower courts have refused to rely on this information because it violates the total privacy given to jury deliberations in the United States (absent a third-party influence into the jury room).

In contrast  to this total prohibition against scrutiny of deliberations we have the reading, on worldwide television, of the verdict in the Oscar Pistorius trial. Not only was the verdict rendered in public; according to South African law the judge who rendered it (with the help of two appointed assessors) gave all of her reasons for the verdict, including resolution of credibility questions, the drawing or rejection of inferences, and the like.

So these two cases are a study in contrasts. Is it necessary to close our eyes to improprieties in the jury room – if indeed they occur – in order to secure the right to a traditional lay jury? Do we have to give up the judgment of lay jurors to learn the reasons why a jury resolves a case the way it does? Food for thought.

Case Divides Court on Criminal Defendant’s Right to be Present at All Stages of Trial

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 10, the New York Court of Appeals issued a divided opinion in People v. Rivera regarding a criminal defendant’s right to be present during any supplemental instructions the trial court may give to even a single member of the jury. Defendant Rivera was charged with murder and illegal possession of a weapon. While the jury was deliberating, the trial judge informed the attorneys that juror number 11 requested to speak with the court, and the attorneys consented to the judge’s meeting with the juror, with no one else present.

The judge then had a colloquy in the robing room with the juror, who it turned out, wanted further guidance on “imminent danger,” relating to the defendant’s argument that he killed in self-defense. After the colloquy, the judge informed the attorneys and defendant about the meeting and told them that a transcript of the colloquy was available for review. Neither counsel requested a reading of the transcript.

The jury acquitted on the murder charge but found the defendant guilty of the weapons charge. On appeal, the Second Department reversed the conviction on the weapons charge because the defendant was not present during the court’s colloquy with juror number 11.

A majority of the Court of Appeals affirmed the Second Department’s decision and agreed that holding this colloquy in the absence of the defendant was – similar to the recent People v. Walston decision– a violation of CPL § 310.30 and a “mode of proceedings error” that did not require an objection in order to be raised on appeal.

Rivera was a 4-3 decision. Judge Abdus-Salaam wrote an extensive and vigorous dissenting opinion, in which Judges Read and Smith joined. The dissenters opined that, given the facts of the case and the purpose of the presence rule,

the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

The dissenters cautioned that

[u]nder the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal.

The Rivera majority took a strong stand on the “absolute right” of a criminal defendant to be present during all instructions a court provides to the jury. On the other hand, the Rivera dissenters raise the concern that strict application of the “mode of proceedings” doctrine may lead to situations in which defense counsel’s advocacy for the client requires counsel not to object to errors where an objection would otherwise be required.

Rivera and Walston indicate that the Court of Appeals is divided on the scope of CPL § 310.30 and the “mode of proceedings” doctrine. It seems likely that the Court will confront these issues again.

References:

N.Y. Court of Appeals Issues Ruling on Disclosure of Jury Notes in Criminal Cases

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On June 12, 2014, the New York Court of Appeals issued a memorandum decision on the responsibilities of a trial court when a jury sends a note asking for clarification of the court’s instructions on the elements of the crimes presented for the jury’s deliberations.

The appeal arose from a case in which the prosecution charged the defendant with second-degree murder, pursuant to N.Y. Penal Law § 125.25(1), which requires proof of intent to kill.  At the close of proof in the case, the trial court, in addition to instructing the jury on the elements of this charge, granted the defense counsel’s request to instruct the jury on the lesser included offense of first degree manslaughter, in the event that the jury, pursuant to Penal Law § 125.20(1), found that the defendant’s intent was not to kill the victim but only to cause serious physical injury that unintentionally resulted in the victim’s death.

During its deliberations, the jury sent the judge the following note: “Power Point – Judges directions on Manslaughter/Murder in the Second Degree -(Intent).” The judge did not present the jury’s note to the parties (apparently receiving no request to do so), but simply informed them that the jury was requesting “the Judge’s directions on manslaughter and murder in the second degree.” Of particular importance in this case is that the judge did not inform counsel of the note’s reference to intent. When the judge called the jury to the courtroom to hear his response to the note, the judge said that he understood them to be asking merely for a read-back of the instructions on the elements of charges at issue, and the judge repeated these instructions.

The jury acquitted defendant on the murder charge but found him guilty on the manslaughter charge. In rendering this verdict, the jury had to make a crucial decision about the defendant’s intent. Their verdict implied that they found that the defendant’s intent was not to kill but to cause serious physical injury.

The Defense appealed, arguing that the trial judge erred by not informing counsel of the jury note’s reference to intent. The Court of Appeals agreed. The Court noted that Criminal Procedure Law § 310.30 requires that when the trial court receives a request from the jury “for further instruction or information with respect to the law,” the court must give notice of the content of the request to the People and the defense. The Court stated that under its precedent in People v. O’Rama, 579 N.E.2d 189 (N.Y. 1991), this notice must be “meaningful,” so that the defense is able “to evaluate the inquiry and the proper responses in light of the defendant’s interests.” Id. at 192. The O’Rama court stated that

[a] court can neither serve the goal of maximizing counsel’s participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror’s communication and is thereby deprived of an advance opportunity to suggest a response.

Id. at 193. Following this precedent, the Court held that the trial judge’s conduct with respect to the jury note, omitting specific reference to the intent issue, failed to satisfy this obligation. Moreover, because the Court deemed this a failure of the trial court’s “core responsibilities” relating to the court’s “mode of proceedings,” the Court held that under O’Rama an objection by defense counsel was not required to preserve the issue for appeal.

The Court vacated the defendant’s manslaughter conviction, with leave to the People to resubmit that charge to a grand jury.

Judge Robert Smith concurred in the result, while stating some misgivings that excusing the preservation requirement in such a case may provide defense counsel with a tactical opportunity to avoid seeking full disclosure to counsel of the contents of a juror note in hopes of a future reversal of the conviction. He suggested that a future case might raise and brief the issue of the scope and validity of the “mode of proceedings” doctrine and afford the Court with an opportunity to reconsider and revise of this doctrine.

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