Archive for October, 2019

The Problem With The Mirada Warning & Children

posted by Judge_Burke @ 18:10 PM
October 31, 2019

Raneta Lawson Mack (Creighton University School of Law) has posted These Words May Not Mean What You Think They Mean: Toward a Modern Understanding of Children and Miranda Waivers (Boston University Public Interest Law Journal, Vol. 27, No. 258, 2018) on SSRN. Here is the abstract:

This article discusses the history of Miranda waiver standards and cases interpreting those standards as applied to children (including a discussion of the recent Slender Man case and the “Making a Murder” conviction involving Brendan Dassey). The article explores efforts on the state level to establish more protective standards for minors facing police interrogations and also takes a comparative look at international efforts to enhance children’s rights during custodial interrogations. Finally, the article offers proposed best practices that acknowledge the vulnerable position of minors in custodial interrogations while also allowing law enforcement to pursue reliable evidence of guilt.

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An Interesting Essay About Cars & The Fourth Amendment

posted by Judge_Burke @ 21:00 PM
October 30, 2019

Tracey Maclin (Boston University – School of Law) has posted Cops and Cars: How the Automobile Drove Fourth Amendment Law (Forthcoming, Boston University Law Review, Vol. 99, No. 5, 2019) on SSRN. Here is the abstract:

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s Justices view the Fourth Amendment rights of motorists essentially the same way that a majority of the Justices did in 1925. Specifically, Part I highlights Seo’s major assertions regarding Carroll; Carroll’s influence on another controversial search and seizure decision, Terry v. Ohio, 392 U.S. 1 (1968), which upheld an officer’s power to stop and frisk a person he suspects is armed and dangerous; and finally, Carroll’s connection to the police authority upheld by the Justices that permits the discretionary and discriminatory policing that currently pervades America’s highways and roads.

Part II of this essay focuses on the modern Court’s understanding of motorists’ privacy. Carroll’s vision of how the Fourth Amendment applies to searching cars was not inescapable. While many lawyers and law students today might not believe it, not so long ago several members of the Burger Court took the view that cars should be treated like other effects under the Fourth Amendment – which meant the warrant requirement would apply to cars. Though a majority of Justices never embraced the view that warrants are required to search the interior of vehicles, in a series of cases the Court went back and forth on whether warrants were needed to search private containers found in vehicles. Part II examines these cases and the Court’s flawed norm that motorists have diminished privacy interests in closed containers found in cars when police have probable cause to search. One could view these cases as adopting a narrower view of motorists’ privacy rights than the view embraced by Carroll. More importantly, the understanding that currently permits warrantless searches of suitcases and purses under the automobile exception, if meant to be a neutral principle, would also allow warrantless searches of computers and cell phones found in cars. I examine whether today’s Court will apply the automobile exception to searches of computers, cell phones and other electronic devices found in vehicles

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OK, Maybe It Has Some Flaws

posted by Judge_Burke @ 20:51 PM
October 29, 2019

The American Civil Liberties Union of Massachusetts conducted a test of facial recognition technology to identify 188 New England athletes. The test misidentified 28, matching them to mugshots in the arrest photo database.

The facial recognition technology is called “Amazon Rekognition,” and was unveiled by the company in 2016.

“Amazon Rekognition is based on the same proven, highly scalable, deep learning technology,” states the website. “Developed by Amazon’s computer vision scientists to analyze billions of images and videos daily and requires no machine learning expertise to use.”

The test included official headshots of well-known athletes from the Boston Bruins, Boston Celtics, Boston Red Sox and New England Patriots and compared them with 20,000 public arrest photos.

“This technology is flawed,” said New England Patriots safety Duron Harmon, the New England Patriots safety who was one of the 28 misidentified. “If it misidentified me, my teammates, and other professional athletes in an experiment, imagine the real-life impact of false matches. This technology should not be used by the government without protections. Massachusetts should press pause on face surveillance technology.”

A similar test conducted last year by the ACLU of California misidentified 28 sitting members of Congress who were disproportionately people of color, including six members of the Congressional Black Caucus.

Google Facial Recognition Project Used Shady Ways to Find ‘Darker-Skinned’ People When 2020 Comes, CA’s Body Camera Facial Recognition Goes Facial Recognition Software on the Rise in U.S. Schools

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Should State Courts Decide Traffic Stops Based Upon Their State Constitutions?

posted by Judge_Burke @ 19:36 PM
October 28, 2019

Although there are judges (and lawyers) who read this blog from North Carolina, there are not a lot, and the question is why should any of us be concerned about North Carolina law? The simple answer is the issues are quite similar throughout the nation. Anthony Ghiotto (Campbell University School of Law) has posted Traffic Stop Federalism: Protecting North Carolina Black Drivers from the United States Supreme Court (University of Baltimore Law Review, Vol. 48, No. 3, 2019) on SSRN. Here is the abstract:

Black drivers face a different constitutional reality than whites the moment they step behind the wheel in North Carolina. Although black drivers represent only about twenty-two percent of the North Carolina population, thirty-two percent of all traffic stops involve black drivers. This racial disparity may raise suspicion of either implicit or explicit racial profiling on the part of police departments, but the reality is that North Carolina law does not expressly prohibit racial profiling. Instead, so long as the police officers have an objective basis to stop a driver — and they may choose from any of the hundreds of misdemeanor traffic regulations — their implicit or explicit racism is largely irrelevant. Once stopped, the power dynamic only increases in favor of the police. Police officers may request a drug dog to “sniff” around a driver’s vehicle with no suspicion, knowing that should the dog alert to the presence of drugs, there would then be probable cause to search the entirety of the vehicle without a search warrant. If the drug dog does not arrive prior to completing the objective of the traffic stop, the police officers may continue to hold the driver if there is reasonable suspicion of wrongdoing. The police officers may develop this reasonable suspicion through seemingly innocent behavior on the part of the driver, including nervousness or disrespectfulness towards the police officers. The police officers may also expand the scope of the stop by asking for consent to search the vehicle. Minimal consideration is given to whether a black driver, shaped by prior personal and historical experiences with law enforcement, can refuse consent or to terminate the encounter with the police.

This article argues that the racial disparities for traffic stops and searches are the fault of two supreme courts: first, the United States Supreme Court for creating a traffic stop framework built on a number of supposed objective standards that give excess deference to police officers’ subjective beliefs and expectations while ignoring the realities and experiences of black drivers; second, the North Carolina Supreme Court for its blind acquiescence to the framework established by the U.S. Supreme Court. This Article proceeds to argue that North Carolina may protect its own drivers by exercising traffic stop federalism and interpreting its own constitution to consider the experience of its black drivers. Lastly, the Article concludes by arguing that North Carolina may serve as an example to other states who seek to protect their own black drivers from the U.S. Supreme Court.

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Greg Berman, A Great Leader of the Center for Court Innovation, Retires

posted by Judge_Burke @ 19:30 PM
October 25, 2019

Among the most creative people in the criminal justice system is Greg Berman. For nearly 25 years he has led the Center for Court Innovation.

 

Greg Berman to Step Down

Search Launched to Replace Long-Time Leader

NEW YORK, N.Y.—The Center for Court Innovation announces the resignation of its long-time director Greg Berman after 25 years of service to the organization.

 

“We are lucky to have the Center for Court Innovation in New York. For more than 20 years, the Center has served as our research and development partner in reengineering how our courts respond to the needs of our litigants. Under Greg Berman’s leadership, the Center for Court Innovation has helped keep New York at the cutting edge of justice reform, implementing programs that have changed the lives of thousands of New Yorkers for the better. We thank him for his commitment to improving justice in New York,” said Janet DiFiore, chief judge of the State of New York.

“Greg is a dynamic leader who thinks deeply and acts boldly. At the helm of the Center for Court Innovation, he has created and led path-breaking work that has fundamentally changed the way we, as a city, think about the purpose and function of the criminal justice system and the way in which we do justice. On behalf of the city, I thank Greg for his extraordinary service and wish him every success in his next chapter,” said Elizabeth Glazer, director of the New York City Mayor’s Office of Criminal Justice.

“Greg Berman has brought style, foresight, and heart to the business of reforming the justice system. Under his direction, the Center for Court Innovation has become one of the most important justice reform agencies in the world. This is testimony to Greg’s creativity and intellectual curiosity—two qualities that he has embedded into the culture of the agency. It has been a pleasure to work with him,” said Victoria Pratt, chair of the Center’s advisory board.

Berman was part of the founding team that created the Center in 1996 as a public-private partnership between the New York State Court System and the Fund for the City of New York. He became executive director in 2002. Over the years, he has helped guide the organization to an annual budget of more than $80 million and more than 520 employees. He has accepted numerous awards on behalf of the Center, including The Peter F. Drucker Prize for Nonprofit Innovation. He helped create the award-winning Red Hook Community Justice Center, Neighbors in Action, Bronx Community Solutions, Brooklyn Justice Initiatives, Brownsville Community Justice Center, and many other new programs. These projects currently serve more than 77,000 participants each year. Berman also helped to organize the Independent Commission on New York City Criminal Justice and Incarceration Reform (the Lippman Commission), which successfully argued for the closing of the notorious jail complex on Rikers Island.

Berman has written extensively about topics of justice reform. With John Feinblatt, he helped define the field of problem-solving justice with the first-ever book on the topic Good Courts: The Case for Problem-Solving Justice. His latest book (with Julian Adler), Start Here: A Road Map to Reducing Mass Incarceration, was named one of the best books of 2018 by the Vera Institute of Justice and short-listed for the Stephan Russo Book Prize for Social Justice.

Former New York State Chief Judge Jonathan Lippman will lead the search to replace Berman with the help of On-Ramps. The job description can be found here. Berman will remain at the helm of the organization until a new director is in place. After that, he will become a senior fellow at the Center, working part-time on selected writing projects and helping to ensure a smooth transition.

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Reflections On Jury Selection Jurisprudence

posted by Judge_Burke @ 20:37 PM
October 24, 2019

Dan Ziebarth (George Washington University) has posted A Bellwether for Jury Selection Jurisprudence (Kentucky Law Journal, Vol. 108, 2019) on SSRN. Here is the abstract:

The case of Flowers v. Mississippi recently reached a decision in the United States Supreme Court, and has implications for interpretation of both the Sixth and Fourteenth Amendments of the United States Constitution concerning discrimination and fair jury selection. The outcome of this case has the potential to mark a profound shift in future state and federal rulings on intent of bias in jury selection. Curtis Flowers was tried and convicted of murder in Winona, Mississippi following an armed robbery of a furniture store in 1996. Flowers was ultimately sentenced to death following his conviction for the murder of one of the employees of the store. Flowers challenged the ruling on the grounds that his right to a fair trial had been violated as a result of evidence presented against him by three of the store employees. The decision was reversed and remanded. Five more trials took place after Flowers was again convicted and sentenced to death, but Flowers challenged the subsequent rulings on the basis of racial discrimination in the jury selection process. Flowers’ case was taken up by the United States Supreme Court following his conviction at his sixth trial, with his petition alleging violations of his Sixth and Fourteenth Amendment rights. The Sixth Amendment provides the accused with the procedural right to a trial by an impartial jury in all criminal prosecutions. It represents an important check, placed in the hands of individual citizens, against arbitrary prosecution by the government. The Fourteenth Amendment contains the Equal Protection Clause, which maintains that no state shall deprive any person within its jurisdiction of equal protection of the laws.These amendments hold significant power in the determination of what is considered to be fair concerning jury selection in criminal law proceedings.

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THE IMPACT IN SENTENCING OF A PLEA FOR CLEMENCY BY THE VICTIM

posted by Judge_Burke @ 14:23 PM
October 23, 2019

From Judge Wayne Gorman:

In Director of Public Prosecutions -v- T.S [2019] IECA 252, the accused was convicted of sexual offences against his spouse.  The victim wrote a letter to the sentencing court expressing remorse for having contacted the police and seeking leniency for the accused.  She described forgiving him and the impact that a period of incarceration would have on her and their children.

On an appeal from sentence, the Irish Court of Criminal Appeal considered how a plea for clemency by a victim should be considered in imposing sentence.

The Court of Appeal indicated that “ordinarily this is something to which courts attribute some weight”.  However, it held that such a plea “can never…be determinative because crime is an attack on society and not simply a private wrong” (at paragraph 32):

The attitude of the victim of a crime is a factor which a judge may take into consideration in sentencing an offender. However, as observed by the judge, the offence is an attack on society and not simply a private wrong, and therefore the attitude of the victim is not determinative. It is a factor to be taken into account and weighed in the balance in order to achieve a proportionate sentence; that is a sentence proportionate to the gravity of the offence and the personal circumstances of the offender. The judge assessed the plea for clemency as being one of the factors to be taken into consideration in constructing a proportionate sentence and in this regard, we are satisfied that the approach of the trial judge was beyond reproach.

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What Role If Any Should The Victim’s Race Play In Sentencing?

posted by Judge_Burke @ 20:52 PM
October 22, 2019

From Judge Wayne Gorman R. v. AD, 2019 ABCA 396, October 21, 2019, at paragraphs 24 to 29:

The victim’s status as an Aboriginal woman was not considered by the sentencing judge in sentencing the offender. At the oral hearing, we asked the parties how, if at all, the victim’s status in this regard should affect the sentencing of the appellant. We received and have now considered further written submissions from the parties on this question.

The fundamental purpose of sentencing is to protect society (s 718). Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done. The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women. Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion.

The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in section 718 of the Criminal Code, which include denunciation and deterrence.

Consideration of the victim, in this case the fact that she was an Aboriginal female, does not negate or otherwise trump the necessity of courts, when sentencing offenders, paying particular attention to the circumstances of Aboriginal offenders (s 718.2(e)). Rather, it requires that, in having regard to the circumstances of Aboriginal offenders, the courts do not discount the lives of or harms done to Aboriginal victims of crime, their families and their communities (R v Whitehead, 2016 SKCA 165 (CanLII) at para 83, 2017] 5 WWR 222, citing Sanjeev Anand, “The Sentencing of Aboriginal Offenders, Continued Confusion and Persisting Problems: a comment on the decision in R. v. Gladue” (2000) 42 Can J Crim 412 at 418). The appropriateness of considering not only the nature of the victim, but the broader community, was recognized in R v Williams, 2011 BCCA 194 (CanLII) at para 9, 303 BCAC 236, where the Court of Appeal, in upholding the sentence imposed on an Aboriginal offender who sexually assaulted an Aboriginal girl, observed that “[t]here is much to be said for the sentencing judge’s concern for the protection of Aboriginal victims such as this child, and for the role of deterrence in the Aboriginal community.”

Considering the circumstances of the victim and the effects of the offence on the community does not mean that the circumstances of the offender, in particular the circumstances of Aboriginal offenders, are disregarded or, as was argued by the appellant in R v Johnny, 2016 BCCA 61 (CanLII), that consideration of the victim’s circumstances effectively disentitles the offender from a meaningful Gladue analysis under s. 718.2(e). What it does mean is that, in arriving at a fit sentence, judges must take into account the circumstances of the offender, the circumstances of the victim and the effect of the crime on the community in which it took place. The fact that a sentencing judge is required to consider one set of circumstances does not mean other circumstances are ignored (see Johnny at para 21).

Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public. The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence.

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Yet Another Reason To Read The Sentencing Law & Policy Blog

posted by Judge_Burke @ 19:16 PM
October 21, 2019

From the Sentencing Law & Policy Blog, “LawProf Rory Little regularly prepares for the American Bar Association an end-of-Term review of the Supreme Court’s work in criminal cases.  A decade worth of this terrific work is available at this link, and just recently added there is this 48-page accounting of the October 2018 Term.  The whole document is terrific, and here is the start of the first section under the heading “Brief Overview of the 2018-19 Term, Criminal Cases” (emphasis in original):

As far as criminal cases go, there are two “big stories” from the past Term, one descriptive and the other substantive impact of the Term’s “big” cases. Let’s do the descriptive first.

This was the first Term in which two new Justices appointed by President Trump served together. Justice Gorsuch was appointed at the end of the Term before last, so this was his second full Term. Justice Kavanaugh served almost all of this Term; his confirmation was slightly delayed (as you may recall), so he actually first took the bench on Monday, October 8, the second week of the Term.  Still, the big question was, how would these two new Justices affect the Court?

What we now know is that, contrary to the general picture of the prior Term, the Justices divided in a remarkably large number of different variations.  Overall, there were 67 argued cases, plus 5 summary reversals, for a total of 72. I count 26 of the 72 as “criminal law and related,” or 24 of the 67 argued.  Of the 72, there were 20 decisions decided by a 5-4 vote — and of these, there were 10 different variations of which Justices made up the five. This is an unusually high number. It seems that the current Justices are still trying to find their way, and (happily) are not cemented to always-predictable results.  I count 10 of the 5-4 decisions as criminal; in five of those the “liberal” bloc prevailed. If we think of the four liberal Justices as Ginsburg, Breyer, Sotomayor and Kagan, the question becomes: who was the fifth Justice? Interestingly, it was Gorsuch in three, Roberts in one, and Alito in one. (Kavanaugh was not the fifth vote in any 5-4 liberal criminal win, but he did write the strong majority opinion in Flowers, see below, a pro-defendant Batson death penalty decision.)

Justice Gorsuch’s pro-defense votes in at least four cases (Davis and Haymond, plus dissents in Gamble and Mitchell) indicate that he continues the “libertarian” streak that his predecessor Justice Scalia sometimes exhibited.  At the same time, Justice Gorsuch’s majority opinion in Bucklew, a death penalty case in which he boldly wrote that “last-minute stays should be the extreme exception,” demonstrates a strong pro-government position on capital punishment. Interestingly, despite their common appointment source, Justices Gorsuch and Kavanaugh did not always agree (they had only a 56-70% overall agreement rate), and were on opposite sides in six or more criminal cases. Is there a lesson here? Wait and see, is my advice.

Substantively, because 23 of the 67 argued cases (or 25 of the 72 total) were criminal lawor-related decisions, we can see that over a third of the docket is “criminal.” This is about normal for the Supreme Court’s docket. With 25 criminal-and-related decisions, of which I’d say 17 were “pure criminal,” there is a lot to digest (as the following 38 pages demonstrate).  Only a few highlights can be summarized here.

What was the “biggest” criminal law decision of the Term?  Of course it depends on your interests, and perhaps your ideology.  Certainly the Gamble case, affirming the “separate sovereigns” exception to the Sixth Amendment’s Double Jeopardy Clause despite calls for overruling it, was big news.  Meanwhile, the Timbs decision makes it clear that the Eighth Amendment’s “no Excessive Fines” Clause applies fully to the States. (In a similar vein, next Term the Court will decide whether the Sixth Amendment’s unanimous jury requirement is similarly “incorporated,” in Ramos v. Louisiana). Meanwhile, the Fourth Amendment decision in Mitchell suggests that a majority is ready to broaden the concept of “exigent circumstances” as a categorical exception.  And finally, the Haymond decision extends Apprendi to the revocation of supervised release, which Justice Alito in dissent calls “revolutionary;” and the decision in Rehaif demonstrates a strong commitment to requiring mens rea for every factual element of an offense (in that case, knowledge that one belongs to a class of persons prohibited from possessing firearms).”

 

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Former AJA President Catherine Shaffer Talks To Fox News!

posted by Judge_Burke @ 19:32 PM
October 18, 2019

Here is a recap of Judge Shaffer’s interview.

The case

On July 19, 2019, the Washington State Supreme Court issued a decision in a murder and assault case involving a motion for a new trial because of allegations that the jury deliberations were tainted by racial bias.  The decision focused on the trial court’s responsibility to oversee the process of determining whether this occurred, including deciding whether to hold an evidentiary hearing and controlling how jurors are to be questioned about deliberations.

The case: State of Washington versus Tomas Mussie Berhe, 444 P.3d 1172, filed July 18 2019.  

Summary: A jury convicted petitioner Tomas Berhe of first degree murder and first degree assault. After the trial, juror 6, the only African-American juror came forward to the defense and to the court.  Juror 6 indicated to the defense that she was treated in an abusive and dismissive way that seemed to be based on her race.  The trial court denied Berhe’s motion for a new trial without an evidentiary hearing, instead relying solely on written declarations prepared with the aid of counsel on both sides.

The Ruling 

The Washington Supreme Court ruled that the trial court failed to exercise sufficient oversight and conduct a sufficient inquiry before denying the defendant’s motion for new trial without an evidentiary hearing.   The court vacated the trial court’s order denying the new trial motion and remanded the case for further inquiry and other proceedings as necessary.

King County Superior Court Judge Catherine Shaffer, a co-chair of the King County Superior Court’s Jury Committee, interprets the ruling this way:

 

As the Washington Supreme Court pointed out, racial bias is a common and pervasive evil that causes systematic harm to the administration of justice.  And where explicit or implicit racial bias factors into a jury verdict, as the state Supreme Court said, “the defendant is deprived of their constitutional right to a fair trial by an impartial jury.”

Both because it is difficult for those who are racially biased to admit their bias, and because implicit racial bias is unconscious and can influence decision making without the decision maker recognizing that influence, the state Supreme Court held that trial courts must control the inquiry when it is alleged that racial bias in the jury influenced the jury’s verdict.

This seems logical.  “If this were a group setting and someone asked, “Are you a racist?” do you really think you would get an honest answer?” posited Judge Shaffer.   

For trial courts, it is also very important that the information gathered from jurors is done on the record, under the oversight of the court, and in an open-ended way.  In the Berhe case, unfortunately, the prosecutors acted without court oversight and sent a two-question survey to the jurors which asked, “Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?” and “Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias?” This tended to lead the jurors into a response that supported the prosecutor’s opposition to the new trial motion and undermined the ability to find the facts.

What is the guidance

The state Supreme Court asked trial courts to be more engaged in the process of assessing an allegation of racial bias tainting a verdict, from the start.  It said that as soon as defense counsel learned that juror 6 was alleging racial bias in deliberations, the court and prosecutors should have been notified, and the court should have instructed counsel to have no further communications with jurors about the alleged bias unless on the record and overseen by the court.

The state Supreme Court directed that a trial court should first decide if there is sufficient information, objectively viewed, to indicate race played a factor in the verdict.  If this evidence is unclear, the court should, on the record, make further inquiries, such as asking the juror alleging bias to provide more information or clarify their statements.  If it appears that there is information indicating racial bias did play a part in the verdict, then the court should hold an evidentiary hearing.

Judge Shaffer believes the state Supreme Court provided helpful guidance to trial courts that they must be more engaged, in cases involving allegations that racial bias affected a verdict, in gathering clarifying information about whether race played a role in the deliberations.

This does not mean that trial courts will be investigating or breaching the secrecy of deliberations.  Instead, the Berhe decision creates a roadmap for courts looking at the specific question of whether racial bias influenced a verdict.

We do this already 

Trial courts are quite familiar with the process of talking to jurors, because they do it often in jury selection and occasionally during trial when there are allegations of misconduct.  For post-verdict inquiries into racial bias, the decision means trial courts use a similar approach and supervise the process.

If this happened in her courtroom, and inquiries of juror 6 on the record indicated racial bias had an impact on the verdict, Judge Shaffer said she would consult with counsel, on the record, in her court to develop open-ended questions for an evidentiary hearing such as, “Did you notice Juror 6 being treated in a different way? Why do you think that happened?” She would then have jurors questioned individually to get at the most honest answers.  This is very similar to the procedure that is used in many cases in jury selection to investigate potential issues of bias, for example in cases that have drawn pretrial publicity or that raise sensitive issues.

“We have questionnaires. For example, a sexual assault trial, you ask if the juror can be fair if the juror has been the victim of sexual assault or is close to someone who has. Then we listen carefully,” said Judge Shaffer.

“In the Ride the Ducks trial, we had a lot of questions to get to whether people could be fair: Do you have detailed information about the Ducks incident? Are you familiar with the Aurora Avenue Bridge? Have you or people close to you been in a serious vehicle accident?

“There are certainly times people aren’t forthcoming. When I was a prosecutor, I had a juror who remained silent on a particular issue during voir dire. We had the trial. During jury deliberations, she said based on a particular belief and experience she had not disclosed in voir dire, she absolutely would NOT agree to convict on a particular charge. So it was 11-1 on that charge, but we had other charges.”

Is this a groundbreaking ruling? Not particularly. This is the direction the county is going. “We take allegations of racial bias very seriously,” Judge Shaffer said, “That implicit and explicit bias can negatively affect the court system is well established.  Justice Yu referenced that problem in her decision. Other organizations that have published on this topic include the American Bar Association, Scientific American, and the National Center for State Courts.”

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