Summer is here and everyone is feeling excited about fair cross-section claims. Or at least I am after hearing an enlightening presentation about them, described below. Continue reading
Tag Archives: jurors
A Jury of One’s Peers
Holding Jurors in Contempt for Cell Phone Use
Courts around the country have struggled to address inappropriate cell phone usage by jurors. Some judges have used their contempt powers to deal with the issue. In Oregon, a judge held a juror in contempt for texting during a trial, and the juror spent a night in jail as a result. In Florida, a judge cited a juror for contempt for using Facebook during trial. And now, the issue has cropped up here in North Carolina. Last week, Superior Court Judge Milton “Toby” Fitch held a juror in a civil case in contempt for using his cell phone to take notes about the trial, and sentenced the juror to 30 days in jail. The Wilson Times has the story here. The News and Observer has an AP story with some additional details here. Continue reading →
What Not to Wear . . . If You’re a Juror
We’ve already covered lawyer attire on the blog. In fact, that post is one of the most popular we’ve ever had. A recent story has brought juror attire to the fore.
According to the Wall Street Journal Law Blog, a federal court in Florida sent two prospective jurors home for violating the court’s dress code. The defendants in the case were convicted of mortgage fraud. They now claim that the exclusion of the jurors violated the defendants’ right to a jury drawn from a fair cross section of the community. They argue that some individuals may not be able to afford to comply with the dress code, while others may choose to dress outside the code according to the “accepted fashion norms of a racial minority.”
The dress code in question states that “[p]roper attire includes coat and tie for men and similarly appropriate attire for women. No jeans, polo shirts or sneakers.” I did a few minutes of research, and didn’t find another court with such a strict dress code. My impression is that seeing a juror in a coat and tie is like spotting a black bear: not totally unheard of, but definitely not an everyday occurrence.
Here in North Carolina, the Administrative Office of the Courts provides some general guidance for jurors: “You should dress comfortably, but not too casually. Dress for court as if you were going to work or to church. Many judges do not allow anyone to come to court wearing halter or tank tops, cut off jeans, or shirts with offensive wording. Remember you will be acting as part of the court while serving as jurors, so dress appropriately.” In Forsyth County, the clerk’s office recommends “[b]usiness casual.” In Mecklenburg County, “[c]asual business attire” is expected, and shorts, tank tops, flip flops, and bare midriffs are forbidden. The federal court for the Eastern District of North Carolina has “no formal dress code,” but asks jurors to bear in mind that “court is a solemn and dignified place.”
In some urban areas, expectations may be more relaxed. For example, the District of Columbia courts “respect individual style and fashion trends,” and expressly prohibit only “gang paraphernalia and insignia; exposed undergarments; clothing with words, depictions, or messages that are intimidating or obscene; clothing with sexual or drug references; and sheer, see through, or provocative clothing.”
There aren’t many cases on juror dress codes. The only in-state case I could find supports a trial judge’s authority to impose reasonable standards for attire. In State v. Brooks, 205 N.C. App. 321 (2010) (unpublished), a superior court judge deferred from jury service all prospective jurors wearing shorts or tank tops. The court of appeals ruled that this was a proper exercise of “the judge’s authority to control her courtroom.” The case didn’t explore the limits of that authority, and I wonder whether a judge who sought to ban tennis shoes and polo shirts, for example, would find support in the appellate division.
Please share your stories about the practice out there. What will get a prospective juror turned away? What’s the least appropriate outfit a juror or prospective juror has worn to court?
Refusal to Deliberate
I was asked recently whether a juror can be removed for refusing to deliberate. The case in which the issue arose has concluded, a federal circuit court just weighed in on the issue, and I thought that others might be interested in the law in this area, hence this post.
There’s no North Carolina case directly on point. The closest precedent that we have is State v. Sanders, 347 N.C. 587 (1998), a case that arose from a capital resentencing. The jury in that case went off the rails in a number of ways, some of which aren’t relevant here. The aspect of the case that is pertinent concerns the jury’s conduct after it divided 11-1, with the majority favoring the death penalty. The holdout juror “indicated that several jurors expressed their belief that she was not capable of continuing deliberations and . . . stated that they hoped she or [a family member would] be [defendant’s] next victim” if a life sentence were imposed and the defendant were paroled. In response, the holdout juror apparently stated that she could not impose the death penalty because she had not heard all the evidence at the defendant’s original trial. The trial judge declared a mistrial based on juror misconduct, and the state supreme court found that it was supported by manifest necessity. The jury was “not deliberating as [the trial judge] had instructed,” including by considering irrelevant matter such as parole eligibility and what evidence might have been introduced at the previous trial; it was “disregarding the trial court’s instructions concerning [the jurors’] duties and the law”; and it was engaged in “personal attacks and threats directed at a juror.”
While Sanders involved what might be described as a general breakdown in deliberations, cases from other states are more directly on point regarding a single juror’s refusal to deliberate. For example, in Prieto v. Commonwealth, 682 S.E.2d 910 (Va. 2009), the court considered a capital trial that had been divided into three phases: guilt-innocence, mental retardation, and penalty. The case reached the second phase, where the jury divided 11-1. The holdout juror sent a note to the judge stating that his decision was “firm and final and deliberation has crossed the line into peer pressure,” and asking the judge to “end this deliberation.” The judge gave the jury an Allen charge and sent the jurors to lunch, instructing them to resume their deliberation afterwards. Instead, the holdout sent another note about the “pressure” he was facing and asking the judge to end the deliberation and to dismiss the juror. The judge declared a mistrial based on juror misconduct, including what it viewed as the holdout’s unwillingness to follow instructions and to continue deliberation. The reviewing court affirmed, finding the mistrial supported by manifest necessity based on the juror’s misconduct.
By contrast, in Semega v. State, 691 S.E.2d 923 (Ga. Ct. App. 2010), the trial judge replaced a holdout juror in a rape case after the foreperson sent out a note stating that the juror “refus[ed] to look at all of the evidence before making a decision” and that the holdout’s “only view is since there was no camera in the room it’s [the defendant’s] word versus [the alleged victim’s].” Although the holdout told the judge upon inquiry that he had “listened to every bit of the words that has went on in this court” and had discussed the evidence with the other jurors in keeping with the court’s instructions, the court found a refusal to deliberate based on the foreperson’s representations, and replaced the juror with an alternate. The reviewing court found error, stating that although a juror’s refusal to deliberate might in some cases warrant removal, “a particular danger of harmful error is posed by the removal of a lone holdout juror. Such a juror may well have concluded that a reasonable doubt exists as to the defendant’s guilt and therefore has not refused to deliberate but has simply refused to engage in additional deliberation after reaching his conclusion.” See also Williams v. Cavazos, __ F.3d __ (9th Cir. May 23, 2011) (finding a Sixth Amendment violation where the trial judge “dismissed a known holdout juror [on the grounds that he was biased against the prosecution] and replaced him with an alternate”; the court emphasized that the Constitution “does not allow a trial judge to discharge a juror on account of his views of the merits of the case”).
What’s the bottom line? Although a juror’s complete refusal to deliberate, in contravention of a judge’s instructions, can constitute juror misconduct that warrants the replacement of the juror or the declaration of a mistrial, a judge should be very cautious about removing a juror for refusal to deliberate, especially when the “refusal” happens after a long period of deliberation and may simply reflect the juror’s feeling that he or she has explained his or her position to the best of his or her ability, and that he or she simply has nothing further to say. It is not misconduct for a juror to view the evidence differently than other jurors or to be unpersuaded by others’ arguments.
I was reading the News and Observer this morning over breakfast and saw this story about jury selection in a Wake County murder case. The thrust of the story will not surprise anyone who has ever tried a lengthy case:
At a time when many families are feeling pinched by the recession, prosecutors and defense lawyers have had difficulty finding jurors for the four to six weeks [the trial is expected to last]. . . . [T]he judge has heard many claims of financial hardship from men and women who fear being out of the office and off the job for at least a month.
The story briefly mentions the compensation that is provided to jurors, but it made me realize how little I know about juror compensation. So I researched it a bit. Here’s what I found.
Basic Rule. Under G.S. 7A-312, jurors “shall receive [$12] for the first day of service and [$20] per day afterwards, except that if any person serves as a juror for more than five days in any 24‑month period, the juror shall receive [$40] per day for each day of service in excess of five days.” The statute contains special provisions for sequestered jurors, and a different rate of compensation for grand jurors.
Comparison with Other Jurisdictions. This web page purports to list the juror compensation schemes in place in all 50 states, plus the District of Columbia and the broader federal court system, all current as of January 1, 2011. It’s accurate as to North Carolina, and assuming that it’s accurate about other jurisdictions, we appear to be in the fat part of the bell curve. South Carolina provides between $2 and $12 per day, while Arizona’s lengthy trial fund may pay as much as $300 per day in certain circumstances.
Employers’ Obligations. Under G.S. 9-32, “[n]o employer may discharge or demote any employee because the employee has been called for jury duty, or is serving as a grand juror or petit juror.” As far as I can tell, employers are not required to pay their employees during jury service, though some states do mandate that, and of course, some employers do so as a matter of policy.
Tax Status. According to this IRS FAQ, “[j]ury fees received as compensation for services are includible in gross income,” though meals, lodging, and mileage reimbursement, if provided — which they normally are not, in North Carolina — are not taxable. The FAQ also states that “[s]ome employers pay employees their regular wages on days that the employees perform jury duty. In exchange for these wages, the employer may require the employees to pay to the employer the jury fees that the employees receive as compensation for jury service. If an employee must pay these jury fees to his or her employer, the employee may claim an above-the-line deduction on Form 1040 for the amount of the fees paid to the employer.”
I’ve heard plenty of lawyers on both sides argue that our longest, most complicated, and often most serious trials are most likely to be decided by juries composed predominantly of the retired and the unemployed. It would be an interesting proposition to test empirically, but short of that, I’d be interested in your anecdotal opinions.
The Court of Appeals released a number of opinions yesterday. Bob Farb will undoubtedly release his inimitable summaries shortly — to sign up to receive the summaries by email, go here — but I wanted to call attention to one case right away, as it should be of interest to officers, prosecutors, and defense lawyers alike. In State v. Fields, an officer stopped the defendant on suspicion of DWI after seeing the defendant weave within his lane three times in a mile and a half. The defendant wasn’t drunk, but he was carrying drugs, which the officer found after obtaining consent to search the defendant’s car. Prior to his trial on drug charges, the defendant moved to suppress, arguing that the officer lacked reasonable suspicion for the initial stop. Although the trial judge disagreed, the Court of Appeals reversed, holding that “defendant’s weaving within his lane, standing alone, is insufficient to support a reasonable suspicion that defendant was driving under the influence of alcohol.” Of course, weaving can combine with other factors — such as unusually slow speed, or time of night and proximity to bars — to yield reasonable suspicion, but weaving alone won’t do it. Not necessarily an obvious conclusion, and food for thought.
In other news, the financial crisis continues to squeeze the court system. Governor Perdue’s budget proposal, released yesterday, doesn’t propose to cut funding for the courts as much as it proposes to cut funding for a number of other things, but some would say that’s because the courts are already operating on a skeleton budget. In that vein, check out this letter regarding potential court closings from Joseph E. Turner, Chief District Court Judge for District 18. Presumably that’s not the only district struggling to adapt, either.
Finally, the New York Times has a fascinating article today, available here, about jurors’ increasing use of the internet to conduct research during trials. With the rise of the iPhone and other web-enabled devices, every 15 minute break becomes an opportunity for jurors to look into ballistics evidence or battered child syndrome, or to use Google Earth to get an aerial view of the crime scene. Furthermore, some jurors in high-profile trials are apparently posting updates on their Facebook pages and elsewhere, and diligent lawyers are looking for such posts as evidence that the jurors are disobeying the courts’ orders. The article talks about a mistrial in a Florida drug case after eight weeks of trial — what an incredible waste of resources. Maybe judges should be issuing more detailed instructions to jurors about what they can and can’t do, in light of emerging technologies. For all I know, judges may be doing that already — if anyone’s seen anything like that, please post a comment.