There are no easy answers. Courts are instituting hiring freezes and taking other similar actions. But perhaps the Federal Courts approach is correct, even if unlikely to be successful at a state level. Ask for more money now.

From the Marshall Project:

       Toward accountability for implicit racial bias in jury selection. What happens when a prosecutor during jury selection rejects a person of color for a dubious reason that isn’t explicitly based on race? A handful of state judges across the country have recently signaled they are open to exploring how unconscious bias may affect jury selection and what ought to be done about it. In Washington, trial judges now must consider “implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” In California and Connecticut, judicial task forces are studying the matter. And a ruling earlier this month in North Carolina, a state with a long history of racial discrimination in jury selection, offers some hope for reform. TMP’s Beth Schwartzapfel has our story. 

The definition of a pyrrhic victory may well be you won your case in the United States Supreme Court. And then you end up losing. On remand from Byrd v. United States, 138 S.Ct. 1518 (2018), holding that defendant had standing in his rental car, defendant loses on the merits because there was probable cause for the search of his car because of the admission there was a blunt in the car. United States v. Byrd, 2020 U.S. App. LEXIS 14758 (3d Cir. May 8, 2020):

The officers here developed probable cause to search the vehicle when, in response to questioning, Byrd acknowledged that he had a “blunt” in the car. The officers reasonably understood the term “blunt” to refer to a marijuana cigarette and took Byrd’s statement to indicate he had marijuana in the car. In a related context, we have held that “the smell of marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion, but probable cause” to search a vehicle. United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006). Even more so than the smell of marijuana, Byrd’s admission that he might have a blunt in the car gave the officers an articulable and particularized basis to believe the vehicle contained drugs. Byrd’s admission, coupled with the knowledge that Byrd was nervous, had a significant criminal history, and had used an alias, established a fair probability that illegal drugs would be found in the car and gave the officers probable cause to search for contraband.

Byrd contends that any probable cause to search for the blunt was limited to the passenger area of the vehicle and did not justify the further search of the trunk. We disagree. “[T]he police need have no more exact suspicions to search a trunk than are required to search the passenger compartment under the automobile exception, nor need they have independent reason to believe that the contraband for which they are searching is located specifically in the trunk.” United States v. Rickus, 737 F.2d 360, 367 (3d Cir. 1984); see also United States v. Ross, 456 U.S. 798, 825 (1982). The officers here had probable cause to search the entire vehicle for drugs, and they needed nothing more to justify a search of the trunk.

From the EvidenceProf Blog:

A Utah jury hadn’t completed deliberations as the weekend approached on Friday, March 13, 2020. The jury then completed deliberations on Monday, March 16, 2020, finding the defendant guilty. After the defendant was convicted, he appealed, claiming that the judge should have asked the following questions to the jury before the weekend:

These were the facts in United States v. Derman, 2020 WL 1676770 (D. Utah 2020).

The court rejected this argument, finding that

Defendant’s argument in this regard is not only unsupported by the law, it is wholly at odds with his prior stance on the issue. At no time before the jury returned with a verdict did Defendant request that jurors be questioned regarding potential concerns about coronavirus. In fact, Defendant’s current argument is directly contrary to the position articulated in his initial memorandum in support of his motion for mistrial. In that memorandum, Defendant affirmatively stated that “[a] third individual voir dire of the jurors will not suffice[,]” and that “[a] third inquiry of these jurors will cause the jurors to turn on this process all together and feel as if they are on the receiving end of an attack by this Court and the parties.”…Defendant further argued that “any individual inquiry is limited by HIPPA protections as to the status of [jurors’] physical and mental health” and that “an inquiry will not only invade the sacred province of juror deliberations as contemplated by FRE 606 but also jeopardize Mr. Dermen’s rights to a fair and impartial jury.” Id. In essence, prior to the return of the verdict, Defendant affirmatively and explicitly urged the court not to question the jurors. It was only after the jury returned with a guilty verdict that Defendant changed course, arguing for the first time that jurors should have been questioned. Having urged the court not to question jurors before the return of the verdict, Defendant cannot now credibly argue that the court erred in failing to do so.

The court then concluded that

that inquiring into jurors’ views regarding the coronavirus outbreak when no concern had been raised by any member of the jury would have constituted an improper intrusion into their deliberations in violation of Rule 606(b)(1)of the Federal Rules of Evidence. Information concerning the outbreak of the coronavirus does not constitute “extraneous prejudicial information” or “an outside influence.” Accordingly, any inquiry into the juror’s thoughts regarding coronavirus would have been improper.

The vast majority of police officers are dedicated public servants. Particularly now when the coronavirus pandemic is going on it is natural for the police to be sensitive to criticism.

BIG REUTERS INVESTIGATION — “For cops who kill, special Supreme Court protection: The U.S. high court’s continual refinement of an obscure legal doctrine has made it harder to hold police accountable when accused of using excessive force,” by Andrew Chung, Lawrence Hurley, Jackie Botts, Andrea Januta and Guillermo Gomez.

From the blog How Appealing:

“Supreme Court of Canada to hold virtual hearings in June”: Sean Fine of The Globe and Mail of Toronto has an article that begins, “The country’s highest court is about to begin an experiment in a key stage of its legal process: oral argument.”

According to the article, “The video hearings will put the Supreme Court far in front of its U.S. counterpart, which this month began holding hearings by telephone conference calls.”

Anna Offit (Southern Methodist University – Dedman School of Law) has posted an abstract of Race-Conscious Jury Selection (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson framework, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post-facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses this problem with data derived from a five-year field study of Assistant U.S. Attorneys. Through interviews and participant observation during jury selection proceedings, it provides an unprecedented empirical perspective on how Batson has made race central to the ways prosecutors perceive, pick, and strike jurors. Rather than diminishing race’s influence on voir dire, Batson has made it an essential consideration for prosecutors concerned with their in-court performance and professional reputations.

This race-conscious approach to jury selection has arisen in part due to a clear doctrinal shift in courts’ analysis of juror questioning and striking. This shift has expanded the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical findings indicate that there is a meaningful connection between this latter approach and the incorporation of anti-discrimination norms into prosecutorial approaches to voir dire. Having identified and described this link, it becomes possible to perform a deeper audit of the Batson framework, and suggest, as this Article does, that with reform and expansion to address well-documented limitations, it may serve to close the gap between juries as they are and juries as the constitution would have them be.

From Judge Wayne Gorman

In Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39, May 5, 2020, the applicant filed a habeas corpus application seeking to be released from solitary confinement.

The application judge convened a teleconference with the applicant, who was self-represented and counsel for the Attorney-General. The application judge rendered an oral decision dismissing the application, holding that the application was moot.

After rendering the oral decision, the application judge requested additional information from counsel for the Attorney-General. Communication took place between counsel and the judge’s office. The applicant was not informed.

The application judge subsequently filed a written decision addressing the application on its merits.  He relied, in part, on materials not disclosed to the applicant.

An appeal was taken to the Nova Scotia Court of Appeal.

The Court of Appeal allowed the appeal, holding that the manner in which the application “was dispensed with by the lower court was not procedurally fair” (at paragraph 9).  The Court of Appeal concluded as follows (at paragraphs 70 and 71):

Turning to the way the judge gathered and used information after rendering his decision on November 6, 2018, Mr. Pratt’s complaints come as no surprise. Mr. Pratt says the judge’s request for documentation and submissions post decision and his use of those materials to bolster prior reasons—without providing notice or the opportunity for Mr. Pratt to respond—is an obvious violation of due process/natural justice and was prejudicial to Mr. Pratt. Those complaints are warranted.

The written decision bears little resemblance to the judge’s oral decision. The judge proceeded to decide substantive factual and legal issues without any evidence or submissions from Mr. Pratt. For example, the judge concludes Mr. Pratt’s detention after October 29, 2018 was for non-disciplinary reasons. This is a sharp change from the circumstances known during the teleconference on November 6 and appears to be based on records produced without notice to Mr. Pratt by the respondent correctional facility after the application was dismissed. As acknowledged by the respondents, the judge also went on to find the respondents had discharged their burden of proving that the deprivation was lawful. But this issue was not placed before the judge because the application was summarily dismissed without a hearing on the merits. The parties never got to this stage.

For over 50 years the National Center for State Courts has been a valuable resource for the state court community. The coronavirus pandemic has jolted every court. Answers on what to do sometimes are not easy.

What are other courts doing?

The National Center has resources to answer a lot of these questions. You can find it at: https://www.ncsc.org/pandemic