15 Minutes with FIJA - 22 August 2022
Session Notes from 22 August 2022
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 22 August 2022, not including the Q&A.
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Sketchy Jury Hearing in Trial Re: Alleged Whitmer Kidnap Plot
The Detroit Free Press reports on a particularly sketchy jury situation 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”. U.S. District Judge Robert Jonker reportedly held a private hearing with the juror in question, excluded attorneys from both sides from participating in the hearing, sealed all court filings regarding the juror, and ordered both sides not to publicly discuss any jury issues.
Does this strike you as fulfilling the Constitutional right of the accused to a public trial and due process? Several attorneys the Detroit Free Press interviewed, including criminal defense attorneys and former prosecutors, noted that exclusion of the parties from the hearing was unusual and expressed concerns about the fairness of the proceedings and whether or not any potential conviction could be compromised by the process.
How 3 controversial jurors wound up in the Whitmer kidnap jury box, Detroit Free Press, 21 August 2022
China’s Destruction of Hong Kong’s Jury Rights Continues
We are witnessing yet again what so-called “justice” without juries looks like in Hong Kong since its takeover by the communist Chinese government. Hong Kong entrepreneur and pro-democracy activist Jimmy Lai is the only one of seven people associated with Lai’s now defunct pro-democracy newspaper Apple Daily to plead not guilty to national security charges.
While Hong Kong had a nearly two century-long tradition of common law trials by jury, we’ve previously discussed that the communist Chinese government effectively killed that back in 2020. It imposed on Hong Kong after a long period of citizen resistance to a draconian national security law that, among other things, carved out sweeping exceptions to the right to trial by jury. The Chinese government can now deny anyone it so chooses a jury trial.
In Lai’s case, China has stated that it is denying him a trial by jury ostensibly because of alleged “involvement of foreign elements”, alleged concerns regarding the ‘‘personal safety of jurors and their family members” and the "risk of perverting the course of justice if the trial is conducted with a jury". The last excuse on that list is telling. Clearly the Chinese government has already pre-determined what it considers the “correct” outcome and has no interest in pesky Hong Kong citizens contradicting it.
Lai will instead be tried by a panel of three judges hand-picked by China’s communist regime. This clearly undermines the protective role of an independent jury that would have been under far less pressure to convict against their better judgment—whether they found Lai not to have committed the offenses at all or whether they chose to exercise their right of jury nullification.
Hong Kong media mogul Jimmy Lai to plead 'not guilty' under national security law, Radio Free Asia, 22 August 2022
Hong Kong Media Tycoon Jimmy Lai To Face No-jury Trial, International Business Times, 22 August 2022
Jimmy Lai to plead not guilty in national security case as Hong Kong security chief allows Apple Daily access to funds, Hong Kong Free Press, 22 August 2022
China sends the world two messages with no-jury Hong Kong trial, Washington Examiner, 17 August 2022
Hong Kong’s National Security Law and the Right to a Fair Trial: A GCAL Briefing Paper (.pdf), Georgetown Law Center for Asian Law, 28 June 2021
Supreme Judicial Court of Maine May Revisit Speedy Trial Rights
The Supreme Judicial Court of Maine has signaled the possibility that it will revisit speedy trial rights. Though oral arguments have not been scheduled in the case of Dennis Winchester v. State of Maine, The Maine Monitor reports that the Court has invited friend of the court briefs regarding the right to a speedy trial under both its state constitution and the United States constitution.
As we’ve discussed here before, speedy trial violations aren’t neatly defined by a certain number of days having passed as many people think. The Supreme Judicial Court of Maine previously adopted the 4-part test laid out by the United States Supreme Court in 1972 in its ruling in Barker v. Wingo. This test allows the government to weigh to its own liking four elements on a case-by-case basis, paving the way for the government to give itself a pass on speedy trial rights pretty much any time it wants to. It is no surprise then that The Maine Monitor reports that “No defendant has won a speedy trial claim in the Maine Law Court since 1960, according to the ACLU of Maine.”
The 4-part test in Barker v. Wingo allows the government to weigh in its decision of whether a speedy trial violation has occurred: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice or harm towards the defendant as a result of the delay. This test is the minimum by which all states must abide, but they are free to provide more substantial protections. Winchester’s attorneys propose that the harm requirement be eliminated. The ACLU of Maine suggests making any delay of longer than a year be presumed to violate the accused’s speedy trial rights. This would shift the burden onto the government to show the delay was reasonable to prevent the case from being dismissed.
A man waited three years for a trial. His case may change how Maine looks at speedy trial rights, The Maine Monitor, 14 August 2022
Barker v. Wingo (1972), Oyez
FIJA Features
What Is a Fully Informed Juror?, 5 September 2022, registration info TBA
Jury Rights Day, 5 September 2022