Juror’s Racial Bias Enough to Impeach Verdict and Set New Trial

Revelations of a juror’s racial bias during deliberation opens up the jury verdict to impeachment and allows a court to considers the statement’s in whether to grant a new trial.

Pena-Rodriguez v. Colorado, 580 U.S. ___ (2017).

The Supreme Court held that statements made by a juror during a trial that espouses animus or a bias based on race may violate a criminal defendant’s Sixth Amendment right to trial by an impartial jury. In the case, the defendant was convicted of several sex crimes involving minors. After the trial, the defense counsel spoke to jurors about the case and during the conversation, two jurors came forward to alert the defense counsel that one juror made racially disparaging remarks about the defendant to garner support for the conviction verdict. After this discovery, the counsel for the defendant moved for a new trial. The trial court, however, denied the motion under the Colorado rule modeled after FRE 606(b), which prohibits the impeachment of a jury verdict based on statements made by a juror.

The Supreme Court ultimately reversed the decision of the Colorado courts, noting the historical racial bias “implicates unique historical constitutional, and institutional concerns.” Moreover, the court stated “Racial bias is distinct in a pragmatic sense,” while there are safeguards such voir dire or juror observation during the trial, these mechanisms “may be compromised, or….prove insufficient.”

When there is a case where a juror makes a “clear statement that indicates…racial stereotypes or animus [used] to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule gives 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.” To show that a racially biased statement impeded a fair trial, there must be a showing that one or more jurors made overtly biased statements that raise doubt on the fairness of the jury deliberations and verdict. The statement must also “show that racial animus was a significant motivating factor in the juror’s vote to convict.”

https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf

No Sixth Amendment Right to Counsel before Indictment

A defendant has no right to counsel under the Sixth Amendment before formal charges are levied against him or her, even when plea bargaining and other procedural actions are happening

Turner v. United States, 2017 BL 45346, 6th Cir., No. 15-6060, 2/15/17.

The Sixth Circuit ruled that a federal defendant does not have the right to counsel under the Sixth Amendment until charges are officially levied against the defendant. The issue arose because a defendant was being charged by both the state and federal governments for crimes from the same incident. The defendant retained defense counsel for his state criminal proceedings, but was unable to have counsel appointed for the federal proceedings until he was  officially indicted. During the state proceedings and before a federal indictment, the state-appointed defense attorney gave the defendant advice that later proved detrimental to the defendant’s federal case. In the federal appeal based on the claim of ineffective assistance of counsel, the defendant argued that the state appointed counsel provided bad legal advice regarding a plea bargain before the defendant was indicted. The Sixth Circuit, however, rejected the appeal, finding that the right to counsel did not attach at the time of the bad advice, precluding the ineffective assistance of counsel claim brought in the appeal. Even though the federal prosecutors communicated with the defendant before his indictment, the defendant did not have a right to counsel.

https://www.bloomberglaw.com/public/desktop/document/Turner_v_United_States_No_156060_2017_BL_45346_6th_Cir_Feb_15_201?1487783061

Jury Instruction Describing “Serious Bodily Injury” Violated Defendant’s Constitutional Rights

Jury instructions that stated that defined strangulation unto consciousness as a "serious bodily injury" violated the defendant's constitutional rights because he was entitled to the jury making a determination of every element of the crime.

State v. Walker, 2017 UT App 2.

The Utah Court of Appeals held that a jury instruction incorporating language that defined strangulation unto consciousness as a “serious bodily injury” violated the defendant’s Sixth and Fourteenth Amendment rights, requiring the verdict to be vacated and the case to be remanded for a new trial. The defendant was initially charged with aggravated assault for strangling his wife during a domestic dispute. During the trial, the jury was instructed of the varying levels of assault. Additionally, the court included an instruction that was not based on any statutory language, but two Utah Supreme Court cases, that stated “strangulation to the point of unconsciousness constitutes serious bodily injury.” The defendant objected to the instruction because it violated his “right to have the jury make a determination of proof beyond a reasonable doubt on each and every element of the offense.” The Court of Appeals rejected the state’s argument that the instruction incorporated a standard by the Supreme Court, finding that the definition of strangulation as a serious bodily injury was never meant to fit into the legislature’s definition of “serious bodily injury.” By including this instruction, the trial court supplanted the jury’s role as fact-finder and establishing the elements of the charged crime. The combination of the instruction, the evidence admitted during trial, and the closing argument by the prosecutor further highlighted the possible influence the instruction had on the jury in reaching their conclusion. 

https://www.utcourts.gov/opinions/appopin/State%20v.%20Walker20170106.pdf

Delaware’s Death Penalty is Unconstitutional Due to its Sentencing Procedures

After reviewing Delaware’s sentencing procedures, its supreme court ruled that the death penalty is unconstitutional because judges have too much power to make factual findings during sentencing

Rauf v. State, 2016 BL 249274, Del., No. 39, 8/2/16.

   The Delaware Supreme Court held that its state’s death penalty was unconstitutional because a sentencing judge had too much power in making factual findings, thereby violating the Sixth Amendment. The ruling follows the U.S. Supreme Court’s holding in Hurst v. Florida, which required juries, not judges, to decide the facts of the case necessary to justify the death penalty. The court stated that “the Sixth Amendment right to a jury includes a right not to be executed unless a jury concludes unanimously that it has no reasonable doubt that is the appropriate sentence.” While the court attempted to sever or cure the problematic portions of the sentencing statute, it was unable to do so, ultimately leading to their decision to invalidate the entire death penalty statute.

   After this decision, Delaware becomes the 20th state to have ended capital punishment. There are currently 18 inmates on death row in the state.

https://www.bloomberglaw.com/public/desktop/document/Rauf_v_State_No_39_2016_2016_BL_249274_Del_Aug_02_2016_Court_Opin?1470844238

Request For Lawyer’s Contact Information From Girlfriend Considered Invocation of Counsel

Police in Georgia were found to violate a suspect’s right to counsel by continuing to question him after he requested that the police contact his girlfriend to get his lawyer’s information. 

State v. Philpot, 2016 BL 178848, Ga., No. S16A0334, 6/6/16.

    The Supreme Court of Georgia found that the suspect did invoke his right to counsel by asking the police that were questioning him to contact his girlfriend so she could get a hold of his lawyer. There was an initial issue of whether there was ambiguity in his invocation for counsel, but the Supreme Court was unwilling to find comments made by the suspect as ambiguous as he attempted to exercise his rights. The Georgia court reaffirms that a suspect can invoke his right to counsel by contacting a third party first to arrange for their lawyer to appear.

http://www.bloomberglaw.com/public/document/State_v_Philpot_No_S16A0334_2016_BL_178848_Ga_June_06_2016_Court_

Accused Murderers Not Allowed Access Victim's Social Media Info

Prior to trial two accused murderers will not be allowed to access the social media info of the victim and a witness.

 

Facebook Inc. v. Superior Court of S.D. City & Cty., 2015 BL 289675, Cal. Ct. App., No. A144315, 9/8/15

    The court quashed subpoenas from the accused that sought the victim and witness's subscriber information from Facebook Inc., Instagram LLC, and Twitter Inc. The social media companies' motions to quash were initially denied by the trial court. The companies petitioned for a write of mandate in the appellate court, and argued that the trial court abused its discretion.

    Though there are certain exceptions to The Stored Communications Act-which prohibits subscriber information disclosure-there is not a mechanism for criminal defendants to gain access to private communication content.

    The court was not convinced that the defendants' constitutional rights to present a complete defense, to cross-examine witnesses, and to have a fair trial, trumped the rights of privacy that the account holders have under the SCA. The court indicated that the Sixth Amendment right to confrontation and cross-examination does not guarantee pretrial access to otherwise privileged or confidential information.

    The court indicated that the level of sensitivity of the digital information that can be considered in legal proceedings is high. The court was reluctant, and indicated that many other judges are as well, to allow for a broad "everything under the sun" discovery when it comes to electronically stored information of this sort.

     For criminal situations, the SCA only allows for content disclosure to a government agency or entity pursuant to a warrant or by an administrative subpoena or a court order. The government agency is required to give specific facts showing there are reasonable grounds to believe the contents of the communication, the communication here being social media, is relevant to an ongoing criminal investigation.

     This decision is only related to pretrial discovery. The court said that "[n]othing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants' need for effective cross-examination and the policies the SCA is intended to serve."

http://www2.bloomberglaw.com/public/desktop/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_

De Novo Review for Counsel Forfeiture

A trial court's finding that a defendant forfeited his right to counsel through his conduct must be reviewed de novo, even if the defendant did not object at the time and did not have counsel at the hearing.

 

United States v. Ductan, 2015 BL 284193, 4th Cir., No. 14-4220, 9/2/15

    The defendant had not stated specifically that he objected to the ruling that he had forfeited his right to counsel. He did indicate that he was planning to hire private counsel and did not represent himself. He was also speaking in what the Fourth Circuit called "nonsense statements." This behavior prompted the magistrate judge to declare that the defendant had forfeited his right to counsel.

    In this per curiam decision, the Fourth Circuit said that the circumstances of the case require a de novo review of the finding of forfeiture of the right to counsel. The court cited the Ninth Circuit decision referring to a defendant's inability to understand, or even point out, the trial court's errors. The context of making a decision of forfeiture based, at least in part, on the defendant's behavior has now been used in at least two circuits.


http://www2.bloomberglaw.com/public/desktop/document/United_States_v_Ductan_No_144220_2015_BL_284193_4th_Cir_Sept_02_2

Public Trial Not Required for Inquiry of Testimony of a Would-be Murder Victim.

An open hearing is not required for an inquiry into the availability of a victim who gave testimony earlier.

 

State of Kansas v. Samuel Reed, 2015 BL 196978, Kan., No. 106, 807, 6/19/15

 

    The court ruled that the Sixth Amendment right to a public trial was not violated because the question of the victim's willingness to testify did not form part of the prosecution and the public did not have a strong interest in hearing the victim reiterate his refusal to take the stand. The court ruled that "whether [the victim] would testify was a collateral matter concerning a qusion of law," and "there were no allegations of government misconduct that required circulation in the fresh air that accompanies public observation."

 

    Citing the First Circuit Court of Appeals, the court indicated that the right of a public trial does not attach to an offer of proof hearing. The court looked to a Fifth Circuit decision showing that in-chambers discussions addressing "technical legal questions" such as issues about jurors, evidentiary questions, and a discussion with the defendant about witnesses he wished to subpoena for his defense, need not be conducted in public.

 

 

http://www2.bloomberglaw.com/public/desktop/document/State_v_Reed_No_106807_2015_BL_196978_Kan_June_19_2015_Court_Opin