Conviction for Threatening Facebook Comments Reinstated

After a conviction for threatening statements was overturned by the Supreme Court, the circuit court ruled that the failure to instruct the jury on the proper mental state element of the crime was merely a harmless error

 United States v. Elonis, 3d Cir., No. 12-3798, 10/28/16.

The Third Circuit reinstated the conviction of a man who posted threatening messages on Facebook, finding that the lack of instruction regarding intent in the jury instructions was a harmless error. A year before, the Supreme Court overturned the conviction due to the objective standard used to convict the defendant, which was the improper standard. The Court, in their reading of the statute, found that a subjective intent on part of the defendant must be established to meet the mental state element of the crime. On reversal, the Third Circuit found that the incorrect jury instructions regarding the defendant’s intent were ultimately a harmless error, not requiring reversal. The court pointed to the amount of evidence showing that the defendant knew his statements were directly terrifying specific individuals. The opinion stated, “The record contains overwhelming evidence demonstrating beyond a reasonable doubt that [the defendant] knew the threatening nature of his communications, and therefore would have been convicted absent the error.”

The Third Circuit, however, did not address whether a “recklessness” standard should be used to convict the defendant. The Supreme Court, in its decision, did not fully address the issue, although it was suggested in a concurring opinion. Rather than making a finding on the standard, the Third Circuit relied on its harmless error reasoning.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Elonis_No_123798_2016_BL_359855_3d_Cir_Oct_28_201?1478712044

No New Trial: Juror Was Not Asleep, Just Focusing With Eyes Shut

No new trial is required because a juror that was presumed to be asleep was actually focusing with their eyes closed, and only during non-consequential moments of the trial

State v. Mohammed, 2016 BL 239035, N.J., No. A-70, 7/25/16.

   After making a decision about whether a juror was deemed to be inattentive and asleep during a trial, the New Jersey Supreme Court set out new protocol for allegations of a juror falling asleep or being inattentive. Generally, judges have broad discretion to correct inattention, whether they observed the behavior or not. The court held that if a trial judge finds a juror inattentive during a non-consequential part of the trial, then the judge has a wide discretion to fix the problem, with the possibility of review under the “harmless error” standard. If the juror was not paying attention during an important part of the trial, then “the judge must take appropriate corrective action, such as replaying a tape recording or videotape, rereading a portion of the jury charge, or excusing the juror, among other steps.”

   After establishing this protocol, the court found that there was no harm due the actions of the inattentive juror. The alleged instances occurred during pretrial instructions, which were deemed inconsequential by the supreme court. During the other instance of inattention, the trial judge, through his personal observations, found the juror to be paying attention, just with his eyes shut to help “focus.”

http://www.bloomberglaw.com/public/document/State_v_Mohammed_No_A70_September_Term_2014_2016_BL_239035_NJ_Jul.

Making Peremptory Jury Strikes Without Defense Counsel Input after Objections Ruled Harmess Error.

 

Prosecutor giving nondiscriminatory reasons for peremptory jury strikes without defense counsel present to discuss objections is a harmless error.

 

Davis v. Ayala, 2015 BL 193518, U.S., No. 1301428

 

 

       A hispanic man convicted of triple homicide by a jury with no black or hispanic people on it is not entitled to habeas corpus relief, in spite of the fact that his attorney was not present to contest the prosecution's claimed nondiscriminatory reasons for striking them.

 

      Batson v. Kentucky, 476 U.S. 79 (1986), holds that the equal protection clause of the 14th Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. Under this precedent, the defense attorney did object to the peremptory strikes of all of the black and hispanic jurors, however, defense counsel was not allowed to participate in the discussions between the judge and the prosecutor that resolved the objections.

 

     The court said "[t]here is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court," which affirmed his conviction, was "an entirely reasonable application of controlling precedent."

 

http://www2.bloomberglaw.com/public/desktop/document/Davis_v_Ayala_No_131428_2015_BL_193518_US_June_18_2015_Court_Opin