Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA goings on and other related items of interest we come across. It is followed by a short Q&A session to address any questions about the session topics or other jury-related questions. Because September 5 was both Jury Rights Day and Labor Day, we did not have a regular Monday session, but we are back this week. This is an abbreviated summary of the presentation on 12 September 2022, not including the Q&A.
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Update in the Retrial of Adam Fox and Barry Croft, Jr.
Twice previously I reported to you on a sketchy situation regarding a juror in the re-trial of Adam Fox and Barry Croft Jr. for their alleged role in an alleged plot to kidnap Michigan Gov. Gretchen Whitmer.
The court investigated a seated juror who reportedly told co-workers that they “had already decided the case and intended to ensure a particular result at the conclusion of the trial”. The judge then proceeded to meet privately with the juror in question, exclude attorneys from both sides from participating in the hearing, seal all court filings regarding the juror, and order both sides not to publicly discuss any jury issues.
The two men have now officially requested a new trial as well as what is known as a Remmer hearing—an evidentiary hearing to consider potential extraneous influences on a juror or whether juror misconduct has occurred.
More allegations regarding the conduct of the juror in question have come to light since we last discussed the situation. When last we left off, the trial judge had unsealed documents related to the situation, revealing that the judge’s clerk investigated the situation and reportedly called one person who made the claim about the juror in question.
It is now being reported that this was not the only investigation that was done. The defense apparently hired a private investigator who seems to have dug a bit deeper than the judge’s clerk. The private investigator spoke with two individuals who claim that a third told them that the juror in question was “far-left leaning,” indicated they would be voting “guilty no matter what,” and that the juror was “hoping to get on the Whitmer Kidnapping trial, and intended to “hang” the defendants if [the juror] was selected.”
Though the investigator attempted to speak with the coworker known as Person #3—the only one who supposedly heard these comments firsthand from the juror in question—that person refused to talk with the investigator. The investigator did, however, get the name of this individual, which the judge’s clerk was apparently unable to do.
Additional allegations made were that a family member of the juror who also works at the same company reported to others at work that their relative/the juror was giving them status updated during deliberations including telling their relative during deliberations the jury had reached verdicts before they were delivered in court.
The investigator also reported that at least one of the tipsters is now going quiet, saying that they and others fear negative employment consequences if they continued to speak about the situation. Had the Court properly held a Remmer hearing early on in the trial, the defense argues, more information could have been acquired.
The defense pointed out in its argument that while it bears the burden of proving juror misconduct, the Court is denying them the ability to do so:
”The Court has placed the defendants in a classic Catch-22. The Court denied the defendants an opportunity to participate in the questioning of the juror and has ordered that the defendants may not contact the jurors following the verdict… As such, the court has prevented the defendants from developing the record regarding the juror misconduct, despite it being their burden to carry.”
As I’ve said before, I’ll be keeping this case on my radar and will continue to update you as I learn more about the situation.
Men convicted in kidnapping plot file for new trial, WXYZ, 12 September 2022
Convicted Whitmer kidnap plotters send private eye to juror's workplace, Detroit Free Press, 8 September 2022
Remmer v. United States, 347 U.S. 227 (1954)
Hawaii Supreme Court Rules Against End Run Around Grand Jury No Bill
In Hawaii, there appear to be three methods by which prosecution of someone for a crime can be initiated: (1) indictment by a grand jury, (2) an information, or (3) a complaint.
HRS § 801-1 states that:
No person shall be subject to be tried and sentenced to be punished in any court, for an alleged offense, unless upon indictment or information, except for offenses within the jurisdiction of a district court or in summary proceedings for contempt.
The language of this statute suggests that the only legal use of a complaint to charge someone with a crime are either for offenses within the jurisdiction of a district court or for contempt. Additionally, only certain crimes may be charged via a written information signed by a prosecutor. This list is explicitly codified in Hawaii’s revised statutes.
Richard Obrero was prosecuted for second-degree murder, attempted murder in the first and second degree, and use of a firearm in the commission of a separate felony, none of which fall under either of these limited scenarios.
In Obrero’s case, the State seemed determined to prosecute him one way or another. On November 12, 2019 the State filed six complaints against him. Two days later, the State presented a proposed indictment to a grand jury including the six offenses in the complaints plus an additional three alleged offenses. Against the odds, the grand jury found no probable cause and refused to indict him on any of the nine charges.
The State was undeterred. A few hours later that very same day, they tried to take a second bite out of the apple by pushing the six offenses charged in complaints at a preliminary hearing before a district court. Surprise, surprise! The district court sided with the State and prosecution of Obrero commenced.
Obrero moved for dismissal of his charges, pointing out that the process by which he was being prosecuted was illegal per Hawaiian Revised Statutes. The State suddenly fell in love with its state constitution and tried to use it to continue its own illegal behavior.
Prior to 1982, the Hawaiian constitution required the approval of a grand jury for felony prosecutions. But in 1982, the constitution was changed to read:
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer…
According to the State, this didn’t just constitutionally permit the legislature to allow prosecution of even the most serious crimes by complaint and preliminary hearing or information if they changed statutory law to do so. No, said the State, this actually invalidated the current statute that still afforded the protection of the grand jury to those accused of the most serious crimes.
The Hawaii Supreme Court in a split ruling found that HRS § 801-1 is still valid. There was a split in which some of the justices concurred with the entire ruling, an opinion that concurred in part and dissented in part, and another opinion that only dissented. So it was a very messy win, but a win nonetheless.
Meanwhile, the government is publicly clamoring about how the sky is falling if the government is required to obey the law as it expects the rest of us to do. Government officials are raising the specter of the entire criminal legal system breaking down, people accused of serious crimes being allowed out on the streets, and even settled convictions being overturned. The government’s position seems to be that the government can’t be expected to obey the law, but rather it must be changed as soon as possible.
But let me ask a few questions here.
When any non-government, non-connected person breaks the law, what is the usual response? Does the government run right out to change the law so that we no longer are legally required to obey it? Or are we more likely to be criminally prosecuted for breaking it? Even overly harshly so that we can be made an example to deter others from similarly breaking the law?
Why is it that anytime government officials are finally told they must obey they law, it is suddenly declared a crisis situation? Why does the expectation that one must obey the law or be punished or penalized not apply to our government officials as it does to us? Why are they not held to the same standard as we are or—dare I suggest it?—an even higher standard than we are since they are in positions of power over us?
I will be keeping this on my radar because there is now rumbling from government officials about possibly calling a special legislative session to have the grand jury protection, even for serious crimes, removed.
Hawaii Supreme Court Issues Watershed Ruling in Case Where Man Was Illegally Prosecuted for Murder, Law and Crime, 9 September 2022
Hawaii Supreme Court ruling on serious felony cases causing chaos in criminal justice system, KITV4 ABC, 9 September 2022
In Hawaii, It Is All Too Easy To Punish, Honolulu Civil Beat, 5 April 2022
FIJA Features
15 Minutes with FIJA - 12 September 2022