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Jurors, Bias and Extraneous Influence
Several decisions on issues relating to juries and jurors raise
the question, "Does fairness matter?" Or, is the mantra
of the appellate courts of the Commonwealth "Finality uber
alles." Commonwealth v. Guisti, 434 Mass. 245 (2001), Commonwealth
v. Duran, 435 Mass. 97 (2001) and Toney v. Zarynoffs' Inc, ___
Mass. App. Ct. ___ (2001). See also, Wheeler, supra.
In Guisti, a juror who was hearing evidence in a rape case sent
an e-mail in which she stated, "stuck in a 7 day-long Jury
Duty rape/assault case . . . missing important time in the gym,
working more hours and getting less pay because of it! Just say
he's guilty and lets [sic] get on with our lives!" 434 Mass.
249-250. This message was posted on a "listserv" and
read by an attorney who worked for the Legal Aid Society of New
York. This attorney sent a letter to CPCS including copies of
the juror's e-mail, as well as a second e-mail in which she asserted
that she was only joking. The defendant subsequently moved for
a post verdict voir dire of the juror to determine whether the
juror was the woman who posted the e-mail message and if so, whether
she conveyed this or similar sentiments to other members of the
jury. The trial judge denied the motion ruling that the e-mails
did not show that the juror was biased or subjected to any extraneous
influence.
"An extraneous matter is one that involves information not
part of the evidence at trial 'and raises a serious question of
possible prejudice.'" 434 Mass. at 251, quoting, Commonwealth
v. Kater, 432 Mass,. 404, 412 (2000). The SJC reasoned that, "[a]
juror comment regarding the strength of the evidence or his or
her opinion of the defendant's guilt . . is not an extraneous
matter." 434 Mass. at 252. Therefore, the e-mail merely "reflect[ed]
the juror's subjective view of the defendant's guilt at that time."
Id. Although the comment was improper, it could not be used to
impeach the verdict. However, the possibility that the juror received
responses to her e-mails, which may have been extraneous influences,
required that the case be remanded for a voir dire of the juror.
"Where a case is close, as here, a judge should exercise
discretion in favor of conducting a judicial inquiry." 434
Mass. at 253. The case was remanded for a limited voir dire on
whether the juror was in fact the woman who posted the e-mail
messages, and, if so, whether she received any responses; the
content of the responses; and, whether she had communicated the
substance of any responses to any other jury members. At the hearing,
the defendant has the burden of proving that the juror was subjected
to an extraneous influence. If the defendant meets his burden,
then the burden shifts to the Commonwealth to prove beyond a reasonable
doubt that the defendant was not prejudiced by the extraneous
matters. Id.
The defendant has also sought a new trial arguing that the juror's
e-mail demonstrated juror bias. Although juror bias is "not
an extraneous matter, a postverdict inquiry may be appropriate
where there is evidence of bias in order to ensure that the defendant
received a fair trial." 434 Mass. at 253-254, citing, Commonwealth
v. Laguer, 410 Mass. 89, 97 (1991). On this issue, the SJC held
that the defendant did not make "the requisite showing of
juror bias to warrant a postverdict inquiry of the juror."
434 Mass. at 253-254.
Disturbingly absent from the court's "analysis" in
Guisti is any consideration of the fairness or the appearance
of fairness in a trial where one juror expresses she has decided
the defendant is guilty before the evidence closes. While it may
be that jurors "formulate impressions as they hear evidence,"
shouldn't we expect better from the SJC than merely shrugging
off those rare cases that come to light in which a juror not only
formulates an opinion prematurely but also expresses that opinion
in unequivocal terms. Remarkably, the Court concluded that the
juror's e-mail "does not suggest that her mind was closed
or that she was influenced by personal feelings or prejudice against
this particular defendant." 434 Mass. at 254. Wouldn't it
have been refreshing if the Court had expressed concern about
the fundamental fairness of this proceeding rather than merely
busying itself with the nice neat boxes of extraneous influence
and bias?
In Commonwealth v. Duran, 435 Mass. 97 (2001), the Court upheld
the defendant's conviction of first degree murder over the defendant's
argument that his trial counsel, who conducted no pre-trial investigation,
435 Mass. at ___, was ineffective. Counsel also failed to use
a peremptory challenge on a correctional officer who worked at
the facility where the defendant was held pre-trial. Again, the
court found no error in allowing the defendant's keeper to sit
as a deliberating juror. The fact that a juror is a correctional
officer alone does not disqualify him for jury service or cerate
a presumption of bias. 435 Mass. at ___. Still, is that the only
concern. When people are on trial for their life, as they are
in a first degree murder case, can't we do better than this? In
this case, there were four alternate jurors. The deliberating
correction officer could have easily been designated an alternate
or could have been excused. Doesn't fundamental fairness demand
at least this much? As in the pre-trial phase, where defense counsel
did nothing, defense counsel acquiesced in the correctional officer's
continued presence on the jury and was content with an order that
the officer not report to work for the balance of the trial.
The decision in Toney v. Zarynoff's Inc., __ Mass. App. Ct. ___
(2001), concerns a negligence and wrongful death action brought
against a restaurant/bar for injuries suffered when patrons were
attacked just outside the premises. Albert Toney, one of the plaintiff's
was a , Worcester policeman who was dining at the Ding Ho restaurant
in Worcester when he observed an argument between the operator
of the restaurant and several patrons. Toney intervened when one
man, Johnson, spit in the operator's face. After displaying his
badge, Toney convinced Johnson's companions to get Johnson out
of the restaurant. Toney and his companions left soon thereafter
and were confronted by Johnson immediately upon leaving. Johnson
pulled a gun, shooting and badly injuring Toney and one companion
and killing a third. Prior to trial the plaintiffs' sought jury
voir dire on bias against homosexuals. They argued that the evidence
would make it clear that the plaintiffs were homosexuals and accordingly,
needed to determine if any potential jurors would be biased against
them due to their sexuality. The trial judge refused to question
the jury about bias against homosexuals, concluding that this
was a "'totally extraneous issue' which he would 'hate to
inject' into the case."
G.L. c. 234 § 28 first paragraph sets out the questions
that a judge is required to ask of potential jurors. In addition
to the statutory questions, the judge may, in an exercise of discretion,
ask additional questions either upon a party's motion or sua sponte.
"A judge's refusal to aks questions beyond those mandated
by [§] 28 and Rule 47(a), [Mass. R.Civ.P.], will be upheld
unless the judge is shown to have committed and abuse of discretion."
When additional questions are requested that raise issues of bias,
"the litigant must demonstrate that there is a substantial
risk that the case will be decided in whole or in part on the
basis of an extraneous issue." Citing, Commonwealth v. Estremera,
383 Mass. 382, 287-289 (1981). Because the SJC has yet to determine
"that there 'exists an 'indurated and pervasive prejudice'
against homosexuals as a class [citation omitted] and that prospective
jurors must be questioned on the subject to determine their bias
even in those cases where the homosexuality of one of the parties
may be a central issue in the case," the Appeals Court held
that there was no error in the trial judge's refusal to ask any
questions about bias against homosexuals. The Appeals Court did
observe that, "where there was the possibility of prejudice
against homosexuals among prospective jurors, we think that the
better practice would have been to ask the question." Mass.
App. Ct. , quoting, Commonwealth v Ramos, 31 Mass. App. Ct. 362,
364 (1991). Trial judges are encouraged to "respond generously"
to motions for individual voir dire about possible prejudice.
__ Mass. App. Ct. at . ___. Nonetheless it did not find an abuse
of discretion in the trial judge's refusal to inquire about possible
bias against homosexuals.
When judges are asked to pose questions about juror bias, they
are required to "make a brief examination of the facts of
the case to determine if the question is relevant and important
and whether sufficient prejudice is manifested to warrant such
an inquiry. A judge may also assume that the party who desires
the inquiry has evaluated the risk that the inquiry may activate
latent bias in some jurors and insult others without uncovering
bias in those jurors who refuse to acknowledge their bias. The
ultimate decision as to whether the question should be asked lies
within the judge's sound discretion, but the judge must be assisted
in this decision by the party seeking the inquiry. That party
bears the burden of demonstrating the importance and relevance
of the question and the risk of prejudice inuring from its omission
by furnishing the judge with a brief summary of the evidence to
be presented and an affidavit or other means indicating the manner
and means by which the subject will be introduced or play a role
in the case." If the judge decides to ask the question, the
inquiry may be made of the venire collectively, individually or
by incorporation into a preliminary statement about the case.
__ Mass. App. Ct. at ___.
The Court commented that it was not persuaded that the outcome
would have been any different had the question been asked due
to the plaintiff's difficult burden of proof.
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Specific Unanimity
In Commonwealth v. Zane Z., 51 Mass. App. Ct. 135 (2000), the
Appeals Court held that a juvenile charged with rape was entitled
to a specific unanimity instruction where there was evidence of
two incidents either one of which could have formed the basis
for the conviction. "A general unanimity instruction informs
the jury that the verdict must be unanimous, whereas a specific
unanimity instruction indicates to the jury that they must be
unanimous as to which specific act constitutes the offense charged.
51 Mass. App. Ct. at 138, quoting, Commonwealth v. Keevan, 400
Mass. 557, 566-567 (1987). The failure to give the specific unanimity
instruction requested by the juvenile was reversible error. It
is important to note that counsel for the juvenile both requested
the instruction in writing and objected to the trial judge's refusal
to give it, arguing that some of the jurors might believe that
first incident of possible rape occurred and others might believe
that the second incident occurred leading to unanimous agreement
that there was a rape, but no unanimity on which rape occurred.
By specifically requesting the instruction and objecting to the
failure to give it, the record was preserved for appeal.
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Jury Instructions
Commonwealth v. Davis, 52 Mass. App. Ct. 75 (2001)--trial court's
erroneous answer to jury question on laws of leniency, which was
asked with respect to evaluating the testimony of a cooperating
witness (the only witness to implicate the defendant) was reversible
error.
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