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 24 October 2022, not including the Q&A.
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Discussion of Jury Nullification in Darrell Brooks Trial
The trial of Darrell Brooks is coming to a close with closing arguments and jury instructions being discussed today outside of the presence of the jury. Brooks is charged with six counts of first-degree intentional homicide, 61 counts of recklessly endangering safety, six counts of hit-and-run causing death, two counts of bail jumping, and one count of misdemeanor battery with regard to the deaths and injuries that resulted after an SUV barreled into the Waukesha Christmas Parade in 2021.
Wisconsin abolished the death penalty in 1853, so Brooks faces a mandatory life sentence if convicted on at least one count of first-degree intentional homicide. Brooks is representing himself and has, to put it very mildly, behaved rather eccentrically in the courtroom throughout the trial.
During the discussion of closing arguments today outside of the presence of the jury, a heated exchange took place between Brooks and the judge, with Brooks arguing that, “I should be allowed to tell the jury what they need to know, which is the truth. That they have the power. They have the power to nullify laws that they don’t agree with.”
Judge Jennifer Dorow responded emphatically that, “You are absolutely not allowed to tell the jury that. There’s a jury instruction that I will have ready to go if you even ATTEMPT to raise the issue of jury nullification, sir. You have absolutely no right to raise that. That is clear under the law.”
Brooks responded in part that “I can raise what I want to raise... I don’t care what you’re talking about. I’m going to let them know that they can nullify any law that they don’t agree with, which is my right.”
After the judge again stated that it is not Brooks’ right to raise jury nullification, Brooks began yelling and the judge opted to mute him. She stated for the record that if he chooses to violate the court’s rules, she may put him in a separate courtroom where she can mute him during his closing argument if his behavior is not consistent with the rules she has laid out.
Obviously, we disagree with the judge's claim that a defendant does not have the right to inform jurors about jury nullification. This is a clear illustration of why FIJA exists and why jurors need to know about their right of jury nullification BEFORE they ever enter a courthouse.
That said, this would be an odd case for a defendant to try and mount a jury nullification defense, and I’m not even sure that Brooks is seriously trying to do so. This is far from a poster case for jury nullification.
Usually, if people believe someone is guilty of intentional mass homicide, killing several people by hit-and-run, or something like that, they do not want to nullify. If they don't believe it has been proven beyond reasonable doubt that the accused is guilty of those things, then no jury nullification is needed. They just vote not guilty because it has not been proven.
I am not an attorney, but I am not thinking it very likely that this will not prove a successful way to raise a jury nullification defense. Nonetheless, I share this video so that folks can see what will most likely happen in court if you try to address jury nullification to the jury head on. It usually takes a bit of finesse to get these sorts of ideas in front of them, and this is probably not a good way to do it.
I’ll be keeping an eye on the trial tomorrow as jury instructions and closing arguments are expected to take place then. I’ll be interested to see if Brooks attempts to present any jury nullification information and, if so, how successfully or not he does so.
Darrell Brooks Says He'll Tell the Jury Whatever He Wants, short clip of this exchange, Law and Crime Network, 24 October 2022
Darrell Brooks mocks & rants at judge, angry he can't write the jury instructions, longer video with this discussion starting around 17:40, LiveNOW from FOX, 24 October 2022
Louisiana Supreme Court Refuses to Apply Ramos v. Louisiana Retroactively
Disappointingly, albeit, unsurprisingly, the Supreme Court of Louisiana has officially refused to retroactively apply the requirement recently restored by Louisiana voters and the Supreme Court of the United States that jurors be in unanimous agreement to deliver a guilty verdict.
According to news reports, only about 100 incarcerated people in Louisiana whose cases were still in progress at the got relief from the SCOTUS ruling restoring the unanimity requirement, while an estimated 1500 or so people with no remaining appeals are stuck behind bars despite their convictions being invalid because the ruling has not been applied retroactively.
In Ramos v. Louisiana (2019), SCOTUS upheld the long-established principle that a verdict taken from eleven is no verdict at all, restoring the requirement in all courts that a guilty verdict must be unanimously agreed by all jurors. But in 2021, it turned around and contradicted itself in Edwards v. Vannoy, holding that, for thousands of people who were already convicted with their appeals process exhausted, verdicts from 11 or other non-unanimous verdicts were just peachy. They did not, however, restrict the states from providing a remedy in those cases.
By a 6-1 vote, however, the Supreme Court of Louisiana has refused to correct the vast majority of the faulty verdicts in its state. Instead, it has kicked the matter over to the legislature for a legislative remedy if they choose to provide one, or to the governor if the governor should choose to grant clemency.
I’ll be keeping this situation and the similar situation in Oregon on my radar and update you with any news as it develops.
Louisiana Supreme Court: People sent to jail by racist jury rule not owed new trials, Shreveport Times, 21 October 2022
Non-unanimous jury ban isn't retroactive, Louisiana Supreme Court rules, NOLA.com, 21 October 2022
Louisiana v. Riddick (2022) (.pdf), Supreme Court of Louisiana, 21 October 2022
Edwards v. Vannoy (2021) (.pdf), United States Supreme Court
Ramos v. Louisiana (2019) (.pdf), United States Supreme Court
Colorado Supreme Court Opens Comment Period for Proposed Rule Change
A peremptory challenge is made by an attorney who wishes to have a person excused from jury service without giving or having to justify a reason that they would be an unsuitable juror. Race-based peremptory challenges were banned by the United States Supreme Court in its ruling in Batson v. Kentucky in 1986. The ruling, however, provided very little means in practice to enforce this and courts have been struggling with this ever since.
At its July 2022 meeting, the Colorado Supreme Court’s advisory Rules of Criminal Procedure Committee determined that a proposed rule to combat implicit bias in the selection of jurors was advisable. According to an October 4 email from John Daniel Dailey, Chair of the Criminal Rules Committee, after discussion of a variety of possible rules, the committee voted 8-4 to recommend adoption of the proposed rule attached to the email.
To hit the highlights, the proposed rule:
allows the Court to raise the issue of improper bias with regard to a peremptory challenge on its own, in addition to either party being able to raise such issue,
provides that “The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could reasonably view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.”
lists a number of specific circumstances the Court should include in its considerations,
specifies a list of presumptively invalid reasons for a peremptory challenge, including having prior contact with law enforcement officers and expressing a distrust of law enforcement, and
new rules for citing certain types of behavior as reasons for exercising peremptory challenges.
The Colorado Supreme Court is accepting written comments from the public and requests to speak at the public hearing. Details on how to submit comments or speaking requests and deadlines for doing so are listed in the Speak Out section of the FIJA website.
Notice of Public Hearing and Request for Comments, Colorado Rules of Criminal Procedure - Rule 24
Crim. P. 24 Submission and Supporting Materials (.pdf), Rules of Criminal Procedure Committee
Lawmakers urge Supreme Court committee to address racial bias in jury selection, Colorado Politics, 20 October 2022
Colorado's jury selection process: Does 'implicit' bias create injustice?, The Gazette, 20 November 2021
FIJA Feature
Speak Out!—Submitting Public Comments
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