KYSC - Ross - Batson/Gender application

Cole Douglas Ross v. Commonwealth, 2012-SC-000775, rendered February 19, 2015, TO BE PUBLISHED, Reversing and Remanding

The Supreme Court reversed Ross’ convictions for Murder and Arson because the trial court improperly applied the holding in Batson v. Kentucky.  After a challenge was made by the defense to the prosecution’s use of peremptory strikes against two African-American venire members, the prosecution confessed that the only reason it had used a peremptory against the African-American female juror was because she was a woman.  The defense then challenged the prosecution’s discriminatory use of peremptory strikes to remove women from the venire.  The Commonwealth’s star witness was the accused’s ex-girlfriend, a woman of questionable credibility and morals.  Fearing that women on the jury might judge the witness harshly, the prosecution confessed, their plan was to remove as many female jurors as possible.  The trial court held that the use of strikes was permissible.

On appellate review, the Kentucky Supreme Court held that the use of peremptory strikes to remove jurors of one gender was discriminatory.  The Court held that the prima facie showing of discriminatory basis of the strikes was established “on a silver platter” when the prosecutor frankly admitted that he was using strikes to remove women from the panel, apparently unaware that such practice was discriminatory.  Further, the Court held, that the prosecutor’s discussion with the venire during voir dire clearly buttressed the finding of discriminatory intent when the prosecutor questioned whether the women on the panel would be quick to judge the witness because it had been his experience that “women are sometimes harder on women.”  Because of the candid admission of attempting to remove women with the strikes, the line of questioning displaying bias and the fact that the prosecution used seven of their nine peremptory strikes to remove women from the panel, the Court was satisfied that a prima facie case of discriminatory use of strikes had been established.

Moving on to the second part of the Batson analysis, the Court was unpersuaded by the prosecution’s “gender neutral” reasons for the exercise of the strikes.  Undoubtedly tainted by the clearly sexist questioning of the venire and the admitted use of strikes in a gender-biased manner, the Court was unpersuaded by the “demeanor-based reasons” for the use of strikes against female jurors.  The prosecution candidly told the trial court that instead of choosing which jurors to strike, he had chosen which he wanted to remain on the panel and then used his peremptory strikes to remove as many of the remaining jurors as he could.  The Court held that such practice is not acceptable as they are too vague and are not capable of adequate review.  Continuing the Court’s recent line of cases wherein some insight into the reason for the strike must be articulable, that “gut instinct” strikes are not allowable and some justification for the use of the strike must be able to be articulated when challenged, the Court held that such vague reasons for the exercise of strikes can cloud discriminatory reasons and should not be found to be sufficiently neutral to survive a challenge.  The Court stated that stated reasons for use of strikes "must be clear and reasonably specific such that the

opponent of the challenge has a full and fair opportunity to demonstrate pretext in the reason given and the trial court to fulfill its duty to assess the plausibility of the reason in light of all the evidence."

Contributed by Linda Horsman

KLJ - Getting Jurors to Awesome

Article by University of Kentucky Law Assistant Professor and DPA Commission Member Courtney Lollar.

From the Conclusion: 

The Court’s death penalty jurisprudence fails to note one of the most basic reasons why jurors can relatively easily assign responsibility elsewhere: those who authorize the death penalty are inherently removed from the ultimate result. They are never the one to personally carry out, or even observe, the execution they authorize.Even in the best of scenarios, then, juries are inevitably distant from the repercussions of the most significant ramifications of their decision. The graphic reality of the pain inflicted through the execution process is never laid out before the jurors who are tasked with authorizing the death of another.

Given this reality, if jurors are going to be tasked with the “awesome responsibility” of deciding another person’s fate, they need to have an intimate understanding of the full panoply of realities surrounding that decision. The level of discomfort jurors feel in making this decision, even without awareness of the granular details of actually putting someone to death, ultimately provides another reason to reconsider permitting such a punishment.

Read the entire article on the Kentucky Law Journal page

KY COA - Wright - CI issues

Floyd Wright v. Commonwealth, 2011-CA-000759-MR To Be Published

Opinion by Vanmeter, Caperton and Lambert Concur

            Wright was convicted of complicity to first degree trafficking in a controlled substance.  Wright was at another man’s house and a CI came over to buy drugs from the other man.  Wright and the other man went into the kitchen and the other man came back with the drugs.  The CI asked why the drugs were cold and claimed Wright said “we had put them in the freezer.”

After trial, the jury wanted to listen to the audio recording again.  The judge allowed them to take the prosecutor’s laptop into the deliberation room with them to listen to it.  Giving jurors unrestricted and unmonitored access to a party’s laptop, outside the defendant’s presence, is highly improper and the likelihood of prejudice is very high.  This was an abuse of discretion and violated RCr 9.74.  

It was also error for a detective to interpret the audio recording of the undercover CI drug buy for the jury and to vouch for the credibility of the CI.

Contributed by Steven Buck 

KY SC Sept 20 - Sluss- Jury issues and Facebook.

Ross Brandon Sluss v. Commonwealth, 2011-SC-000318-MR, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Noble.  To be published. 

Jury issues and Facebook.

Sluss was convicted of murder, first degree assault, DUI, and tampering with physical evidence.  The case received much publicity in Martin County and was discussed often on Facebook and Topix.   After trial, Sluss discovered two of the jurors may have been Facebook friends with the victim’s mother.  “As a general rule, anything which is good cause for challenge for disqualification of a prosepective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.”  The Supreme Court remanded the case for the trial court to determine if the two jurors were facebook friends with the victim’s mother and the extent and nature of the jurors’ relationship with her if they were.

Contributed by Brandon Jewell  

New Model Instructions to Jurors on Social Media Use

The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media.  These new instructions are available here. 

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, the Conference Committee on Court Administration and Case Management (CACM) chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Another resource is GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE by Thaddeus Hoffmeister

[T]he Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detri-mental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) pe-nalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.

???Juror Pledge??? [???I will not do research on the internet???] - Jury Room Blog

read complete Jury Room post here

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .

 

Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 

____________________________

____________________________

(Sign and Print)

 

Dated: New York, New York

October 11, 2011

Featured Case - Equivocal Jurors

In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence.  More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal."  And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.

Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair."  It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved.  Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.

Contributed by Susan Balliett

Excellent article on Juries and the Use of the Internet

Juror Behavior in the Information Age  LLRX.com

This article collects recent and notable examples of juror online misbehavior and highlights scholarship and practice resources concerning its implications for voir dire, trial management and the administration of justice.

 

Facebook, Twitter and smart phones cause mistrials, appeals and overturned verdicts

One tweet every three minutes from people saying they are on jury duty.

As jurors go online, U.S. trials go off track -  Reuters

Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet.

The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years.

Judges granted new trials or overturned verdicts in 28 criminal and civil cases — 21 since January 2009. In three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors. These figures do not include the many incidents that escape judicial notice.