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.

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.

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.

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).”

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.”

Personality & Individual Differences includes a study: “Dimensions of decision-making: An evidence-based classification of heuristics and biases.”

The authors are Andrea Ceschia, Arianna Costantinia, Riccardo Sartoria, Joshua Wellerb, & Annamaria Di Fabioc.

Here’s the abstract:

Traditionally, studies examining decision-making heuristics and biases (H&B) have focused on aggregate effects using between-subjects designs in order to demonstrate violations of rationality. Although H&B are often studied in isolation from others, emerging research has suggested that stable and reliable individual differences in rational thought exist, and similarity in performance across tasks are related, which may suggest an underlying phenotypic structure of decision-making skills. Though numerous theoretical and empirical classifications have been offered, results have been mixed. The current study aimed to clarify this research question. Participants (N = 289) completed a battery of 17 H&B tasks, assessed with a within-subjects design, that we selected based on a review of prior empirical and theoretical taxonomies. Exploratory and confirmatory analyses yielded a solution that suggested that these biases conform to a model composed of three dimensions: Mindware gaps, Valuation biases (i.e., Positive Illusions and Negativity effect), and Anchoring and Adjustment. We discuss these findings in relation to proposed taxonomies and existing studies on individual differences in decision-making.

Here’s a link: Ken Pope: Dimensions of Decision-Making: An Evidence-Based Classification of Heuristics and Biases

Among the most difficult decisions a judge faces is determine credibility. Judges make factual findings. Judges (including this one) are not necessarily better than others at figuring out who is telling the truth. For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did no better than chance in telling who was being truthful and who was not.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013). Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”

So perhaps you might read this cautiously. Kaila Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon and Kang Lee (University of Regina, University of Toronto, National University of Singapore (NUS), University of Southern California Gould School of Law and Institute of Child Study) have posted Identifying Liars Through Automatic Decoding of Children’s Facial Expressions (Forthcoming in Child Development) on SSRN. Here is the abstract:

This study explored whether children’s (N=158; 4-9 years-old) nonverbal facial expressions can be used to identify when children are being deceptive. Using a computer vision program to automatically decode children’s facial expressions according to the Facial Action Coding System, this study employed machine learning to determine whether facial expressions can be used to discriminate between children who concealed breaking a toy(liars) and those who did not break a toy(nonliars). Results found that, regardless of age or history of maltreatment, children’s facial expressions could accurately (73%) distinguished between liars and nonliars. Two emotions, surprise and fear, were more strongly expressed by liars than nonliars. These findings provide evidence to support the use of automatically coded facial expressions to detect children’s deception.

From the Sentencing Law & Policy Blog,

Adam Liptak has this new New York Times piece headlined “In Death Penalty Cases, Sotomayor Is Alone in ‘Bearing Witness’.” Here are brief excerpts:

The terse Supreme Court rulings arrived in the evening, in time to allow an execution later that night. There were three rulings in the last month or so, at 5:52 p.m., at 7:01 p.m. and at 10:13 p.m. They were bland and formulaic, saying only that the court had denied an “application for stay of execution of sentence of death.” The inmates who had filed the applications were put to death within hours.

In all three cases, only one member of the court bothered to write an opinion, to give a hint about what was at stake. That was Justice Sonia Sotomayor, who maintains a sort of vigil in the capital cases other justices treat as routine. She described shortcomings in the trials the inmates had received and oddities in the laws the courts below had applied….

There is a precedent for Justice Sotomayor’s attention to capital cases, said Jordan M. Steiker, a law professor at the University of Texas…. “Justice Sotomayor is carrying forward the tradition of Justices Brennan and Marshall,” Professor Steiker said, referring to Justices William J. Brennan Jr. and Thurgood Marshall, who came to adopt a practice of dissenting in every death penalty case….

Justice Sotomayor’s sustained attention to the capital justice system, Professor Steiker said, was part of an effort to speak to many audiences. “She recognizes the institutional limits of the court in correcting every injustice or every misreading of federal law, yet she wants to communicate the wrongness of those injustices and misreadings despite the court’s inability to intervene,” Professor Steiker said. “Justice Sotomayor is speaking to institutional actors — judges, prosecutors, defense lawyers — to make clear that the court, or least some portion of it, is keenly aware of problems that it is not presently able to correct.

You can go through a very long career on the bench and never handle a case with an insanity defense. Most of those types of cases fall into two categories: everyone agrees the defense applies and there is a short, virtually stipulated, court trial or a jury trial where most but not all defendants lose. See this article by By Garrett Epps. THE ATLANTIC.

 The U.S. Supreme Court recently heard argument in a Kansas case that will help refine how far states can continue to go to restrict use of the age-old defense.

Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion by Susan A. Bandes :: SSRN

Over the last thirty years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully—as an argument for imposing death sentences, trimming procedural protections, permitting victim impact statements, truncating appeals, denying clemency petitions, speeding up executions, televising executions, and granting the bereaved access to the execution chamber. More broadly, it has transformed the debate about the legitimacy of the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families. Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure isn’t an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings. Yet closure has increasingly come to be viewed as an emotional state—and one that the criminal justice system is capable of helping victims and survivors attain. It has become a prime example of the power of the criminal justice system to shape emotional expectations. This chapter discusses the evolution of closure as a legal concept, the definitional ambiguities surrounding the term, and the institutional consequences of these ambiguities for the criminal justice system. It examines the symbiotic relationship between closure and the criminal justice system, arguing that the criminal justice system has played a powerful role in reshaping the emotional expectations of victims and their families. The chapter then reviews the empirical literature on closure and criminal justice. Finally, it identifies directions for further study.