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. This is an abbreviated summary of the presentation on 17 October 2022, not including the Q&A.
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Supreme Court Refuses Case of Racially Biased Jurors
The United States Supreme Court recently declined to review the case of a black man sentenced to death for the murder of his white wife, biracial child, and his wife’s daughter from a previous relationship. Four Supreme Court judges must agree to accept a case for it to be reviewed, but only three agreed in this case.
An all-white jury, three of whose members expressed clear opposition to interracial marriage in their juror questionnaires convicted and sentenced Andre Thomas. A fourth juror who was selected as an alternate but did not wind up on the jury also expressed such opposition. The jury was seated after Thomas’ attorney failed to challenge any of the four for cause or even ask three of the four any questions about their views and whether their opinions would affect their ability to be fair in the case at hand. Neither did the attorney use any of his available peremptory strikes to remove them from the jury, despite having peremptory challenges remaining still at the end of jury selection.
Thomas appealed on the basis that his trial counsel was ineffective and that his right to an impartial trial by jury under the Sixth and Fourteenth Amendments was violated with the inclusion of three jurors opposed to interracial marriage on the jury that convicted and sentenced him to death in a case involving both interracial violence and interracial intimacy.
In a rare dissenting statement published for a case that the Supreme Court has declined to review, Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, criticized the Court’s failure to review this case, writing:
“No jury deciding whether to recommend a death sentence should be tainted by potential racial biases that could infect its deliberations or decision, particularly where the case involved an interracial crime. Ignoring issues of racial bias in the jury system “damages ‘both the fact and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise of power by the State.’” Pena-Rodriguez v. Colorado, 580 U. S. 206, 223 (2017). This is not to impugn the individual jurors who served in this case, who may themselves have responded to questions honestly and with good intentions. It is ultimately the duty of the courts “to confront racial animus in the justice system.” Id., at 222. That responsibility requires courts, including this one, vigilantly to safeguard the fairness of criminal trials by ensuring that jurors do not harbor, or at the very least could put aside, racially biased sentiments.”
Sotomayor referenced the case of Pena-Rodriguez v. Colorado (2017). In that case, a number of people expressed concern that that opened the door to courts getting involved in or asking questions about juror deliberations which violates the privacy of the jury. But in this case, it’s important to keep in mind that the evidence was already available and was not in any way from deliberations. It came in the form of questionnaires that jurors filled out well before they were even seated on the jury.
It’s interesting that courts will bend over backward to make sure there is no “bias” introduced in favor of mercy for the accused in the form of jury nullification, but when there is blatant evidence of an unfair situation that led to someone being convicted and sentenced to death, the court doesn’t seem to be that interested.
Supreme Court Upholds Death Sentence Where Jurors Expressed Racial Bias, Equal Justice Initiative, 13 October 2022
Justices won’t hear Black death row inmate’s claims of racially biased jurors, Courthouse News Service, 11 October 2022
Sotomayor, KBJ Dissent as SCOTUS Refuses to Hear Case Where Anti-Interracial Marriage Jurors Sentenced Black Man to Death in Murder of White Wife, Law and Crime, 11 October 2022
Statement of Justice Sotomayor respecting the denial of certiorari in the case of Thomas v. Lumpkin (.pdf), United States Supreme Court, 11 October 2022
Parkland Shooter Trial
In recent days the capital sentencing trial of Nikolas Cruz for his acts of mass murder at Marjory Stoneman Douglas High School in Parkland, Florida ended with the jury sentencing him to life imprisonment without the possibility of parole. Sparing him from execution sparked outrage not only from the general public, but within the jury itself resulting in a number of points of concern.
First, as with any high profile case whose outcome is widely unpopular, I have seen numerous unsubstantiated claims that this verdict was a product of jury nullification. I will publish a more detailed write-up on this in the coming days after jurors have had a chance to make their thoughts known publicly if they choose to do so. For the moment, I will point out that merely disagreeing with a verdict in a particular case does not mean that the outcome must be due to jury nullification. We’ll discuss what jury nullification means in a capital case a bit more as part of our FIJA Feature segment.
Second, in recent days the prosecution in this case has requested the trial judge facilitate interview of a juror in this case who reported to the Office of the State Attorney on the day the verdict was delivered that they had felt threatened by another juror while in the jury room.
The prosecution says they have no intention of trying to overturn the verdict, but they felt the police should get involved because a crime may have been committed against this person in the course of jury deliberations.
Third, and perhaps most disturbing, are widespread calls to revert Florida law back to its previous scheme of allowing a death sentence to be issued with only a simple majority of the jury concurring, while as many as five out of twelve jurors feel that a death sentence is inappropriate.
In Hurst v. Florida (2016), the United States Supreme Court struck down part of Florida’s death sentencing scheme known as judicial override. Up to that point, Florida was one of three states that allowed a judge to unilaterally overrule what was then considered only a recommendation from a jury regarding whether someone convicted of a capital crime would be sentenced to death or life imprisonment without any possibility of parole.
After that changed the jury’s role from merely making a recommendation on the judge to actually deciding the sentence, the legislature made some changes, including increasing the required concurrence to sentence someone to death from a simple majority of 7-5 to a supermajority of 10-2. The Florida state supreme court overruled that in another case, ruling that anything short of unanimous agreement on a death sentence would still be unconstitutional. In 2017, the legislature once again revised the requirement, with a death sentence in this trial and other capital trials since then requiring jurors be unanimous. If they are not unanimously in support of the death penalty, the sentence defaults to life without parole.
But since that legislation was passed, the composition of the Florida state supreme court has changed. In another case in 2020, the newly composed court signaled their now majority opinion that the decision of the previous court regarding the 10-2 supermajority being unconstitutional was wrong. They would only require that jurors be unanimously in agreement that the aggravating factors make a defendant eligible for the death penalty. Whether or not to sentence the person to death, the court now seems to say, does not require unanimity.
Capitalizing on the inflammatory climate, both Governor Ron DeSantis and his challenger Charlie Crist have in recent days come out in favor of no longer requiring unanimity to issue a death sentence.
It tells us a lot that they would need to get rid of the unanimity requirement, even in a conservative state like Florida, to continue to make the death penalty possible. There has long been a trend among juries to oppose the death penalty, issuing fewer and fewer death sentences over time. Ending the unanimity requirement also opens the door to more wrongful sentences of death and expands the opportunity for error.
Furthermore, why would unanimity be required to determine whether someone is not guilty or guilty, but in the far more serious decision of whether or not to put someone to death, that should only be a simple majority?
That would take away almost any realistic possibility of jury nullification in capital sentencing as well. So this is definitely something I will continue to keep my eye on.
Parkland shooter’s life sentence could bring changes to law, The Sun-Sentinel, 17 October 2022
Death penalty debate sparked by Parkland school shooter’s life sentence, ClickOrlando.com, 17 October 2022
After Parkland shooter gets life verdict, what’s next for the death penalty in Florida?, Miami Herald, 14 October 2022
Could Nikolas Cruz case change Florida's parameters for death penalty?, WPTV, 14 October 2022
Why does Florida require a unanimous jury decision to impose a death sentence?, The New York Times, 13 October 2022
Florida Supreme Court “Recedes” from Major Death Penalty Decision Creating Uncertainty About Status of Dozens of Cases, American Bar Association, 10 March 2020
Pooler v. State (2020) (.pdf), Florida Supreme Court
Hurst v. State (2016) (.pdf), Florida Supreme Court
Hurst v. Florida (2016) (.pdf), United States Supreme Court
FIJA Features
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