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 resources, events, etc. 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. This is an abbreviated summary of the presentation on 14 November 2022, not including the Q&A.
Click here to register for the live sessions through the end of December 2022.
SCOTUS Turns Down Khorrami v. Arizona Re: Jury Size
Ramin Khorrami was tried and convicted in the state of Arizona on felony charges for fraud and theft by a jury of just eight people. He appealed his conviction, arguing that his Sixth and Fourteenth Amendment rights were violated by a conviction of a jury of less than twelve people.
Well… were they? Not according to an incredibly jury-unfriendly Supreme Court that made numerous bad rulings on jury rights issues mostly in the 1970s. That court held in Williams v. Florida (1970), an opinion fit for the garbage bin, that:
“The constitutional guarantee of a trial by jury does not require that jury membership be fixed at 12, a historically accidental figure. Although accepted at common law, the Framers did not explicitly intend to forever codify as a constitutional requirement a feature not essential to the Sixth Amendment's purpose of interposing between the defendant and the prosecution the common sense judgment of his peers.”
With that ruling just over a 50 years ago, the Court undermined several hundred years of precedent in which it was widely agreed that in serious criminal trials, a “jury” meant, by definition, one composed of 12 members.
This ruling was particularly ripe for revisiting right about now since the Supreme Court recently restored the requirement of unanimity for convictions by juries in criminal cases. Ramos v. Louisiana (2020), overruled two other of that 1970s era Court’s bad jury rulings in Apodaca v. Oregon (1972) and Johnson v. Louisiana (1972), restored the requirement for unanimity for criminal convictions in future trials going forward. It recognized that the concept of unanimity for conviction was implicit in the understanding of trial by jury at the time the Constitution was written, and that is the same argument being made regarding jury size in this case.
That makes it a bit baffling that just four Supreme Court members could not be found who would accept this case for review. It is even more mysterious given that two judges—Kavanaugh and Gorsuch—went out of their way to make clear that they would have accepted it. No word on why Sotomayor and Brown Jackson, who seem like they should have been the two most obvious other judges to accept this case given their criminal justice interests, declined to review it.
Gorsuch wrote an unusual dissent from the denial of certiorari in this case with passionate words spelling out how big an opportunity the current Court missed out on in denying this case review:
“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.”
His dissent gets into great detail on the history of the twelve-person jury and historical understandings of trial by jury in serious criminal cases necessitating a jury of twelve, not by accident as the 1970s court claimed, but by definition. A link to his dissent appears below so you can read it in its entirety.
Arizona is one of just 6 states that allows serious felony trials to be decided by abbreviated juries of 6 or 8 jurors. The others are Connecticut, Florida, Indiana, Massachusetts and Utah.
It takes just one juror to prevent a conviction by hanging the jury, and the accused is much more likely to find at least one such juror when there are 12 people in the jury box than just 8 or 6. So these states have lowered the bar that their governments must clear in order to punish someone.
This includes not only reducing protection of the accused by those who believe the accused to be factually innocent, but also by those who would vote not guilty even though they believe the person whose case they were judging had been proven beyond reasonable doubt to have violated the law—in other words, those jurors who would consider jury nullification. While this particular case is not a typical poster case for jury nullification, it is important to recognize that the denial in this instance will leave more sympathetic cases without relief.
Gorsuch Dissent Chides Colleagues and ‘Wrong’ Supreme Court Precedent for ‘Tinkering’ with ‘Ancient Tradition’ in Criminal Justice Reform Case About Jury Trials, Law and Crime, 7 November 2022
U.S. Supreme Court's Gorsuch says justices should require 12-person juries, Reuters, 7 November 2022
Khorrami v. Arizona, Supreme Court, 7 November 2022
Khorrami v. Arizona, SCOTUSBlog
Johnson v. Louisiana (1972)
Apodaca v. Oregon (1972)
Williams v. Florida (1970)
Fallout from SCOTUS Failure to Retroactively Apply Jury Unanimity: Landon Quinn
On a bit more positive note, our second news story tonight is a report from Radley Balko, an investigative journalist who does important work on criminal justice issues and who has been a long-time proponent of jury rights.
Balko has recently left The Washington Post and started his own Substack newsletter called The Watch. He recently reported on The Watch on the case of Landon Quinn.
Quinn was one of the unfortunate thousands of people left in limbo when the United States Supreme Court followed up its restoration in Ramos v. Louisiana (2020) of the unanimity requirement for criminal convictions in trials by jury with a quick refusal in Edwards v. Vannoy (2021) to retroactively apply that to thousands of cases where people had been convicted improperly by split juries but had exhausted their appeals process. The Court did not, however, preclude state legislatures, courts, or governors from providing relief to those unfairly convicted with invalid trials by jury.
Balko detailed in a lengthy 2019 column for The Washington Post numerous details of the gross miscarriage of justice that occurred in Quinn’s case. Rather than get into all the horrifying details, of which there are many, of how two unfair trials (the first a hung jury, the second a conviction on a 10-2 vote) resulted in a life sentence, I am sharing a gift link to that article in the show notes. For two weeks after publication of the podcast episode, you will be able to read it with no paywall.
So what is the good news? Given that unjust conviction, however, and the subsequent failures of both the United States Supreme Court and the Louisiana state supreme court to correct the injustice done in ths case when they each had the chance to do so, Balko reports that there is at least a little good news for Quinn.
Orleans Parish district attorney Jason Williams, a reform-minded DA elected in 2020, offered Quinn a plea deal which freed him from prison after two decades of unjust incarceration, and Quinn accepted.
Unfortunately, he will not be exonerated, nor will he be compensated for decades of his life stolen from him, and he will go through the rest of his life with all the disadvantages that come with having a felony record.
So good news for him that he is at least out while there is likely some meaningful part of his life left to live, but as I have too often found in this field, even the “wins” are very often tainted with some stench of loss.
I'm happy to report some good news. Mostly., The Watch, 2 November 2022
How two overworked public defenders and six judges left a New Orleans man with a life sentence, The Washington Post, 28 August 2019
Other Item of Interest
The Most Sacred Ancient Liberty: Magna Carta & Trial by Jury in the New Republic, Renee Lettow Lerner, professor of Law at George Washington Universty School of Law (the whole lecture is valuable, but comments specifically regarding jury nullification start around 17:49)
15 Minutes with FIJA - 14 November 2022