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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Update in the Retrial of Adam Fox and Barry Croft, Jr.
Last week I reported to you on a particularly 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.
Such actions, I said last week, could potentially compromise a conviction should the pair be found guilty. Well, the two were, indeed, convicted by their jury shortly after last week’s report.
What has transpired since? The trial judge has since unsealed documents related to the situation. The story given by the government seems to be that while the trial continued, the judge’s clerk investigated the situation and reportedly called the person who made the claim about the juror in question.
One of the juror in question’s co-workers had contacted the defense making these allegations. According to an unsealed document, “The information the reporting coworker provided had come secondhand through another coworker of both the reporting individual and the subject Juror. The reporting coworker had no direct contact with the subject Juror about the Juror’s feelings about this case, jury service, or anything about the instant matter.”
The document also indicates that the clerk tried to speak to the co-worker who allegedly DID speak with the juror in question, but “that coworker had reportedly expressed a desire not to speak or otherwise be identified, and the person who did call refused to identify the person.”
On interviewing this particular juror, it turns out that the juror said no, none of these things are true, and the juror remained seated. As expected, attorneys for the convicted men have expressed an intention to appeal, citing among other things the issue with this juror.
We will see how that goes. That appeal, if it actually is filed, will not be filed for a while because the judgement has to be entered in the trial before the appeal process can continue. I will keep that on my radar and update you as news develops.
Attorneys Lean on Time Limits, Biased Jurors for Whitmer Kidnapping Trial Appeal, 9&10News, 24 August 2022
Juror was suspected of possible misconduct in Governor Whitmer kidnap plot retrial, allowed to stay, FOX17 West Michigan, 23 August 2022
New Jersey Judiciary Ends Required Masking and Social Distancing for Jurors
The New Jersey Judiciary this week ended required masking and social distancing for jurors. This is good, but don’t get me wrong, folks. This is not a return to the “old normal,” but it is a step in that direction.
Per order of the New Jersey Supreme Court, as of the first of September, the Court will:
end the requirement of three feet of social distancing during jury proceedings,
allow but not require participants in jury proceedings to wear masks,
continue the practice of all prospective jurors beginning their service virtually, and
allow judges to decide after the initial juror orientation phase whether to continue jury selection virtually or in person.
This is a step in the right direction for a number of reasons. First, less social distancing may make room for more trials by jury to be held, thereby having a positive effect on the backlog of trials to be heard. Second, being able to view jurors’ body language is considered by many to be important to understanding their truthfulness, level of attention, how they are or are not processing the information being delivered to them, etc. Third, masks can impede communication between jurors themselves in the course of deliberation.
However, it is not clear what by what criteria permission for jurors to mask at their own discretion would be ended, if that ever will end. Nor is it clear under what circumstances virtual jury selection might be ended, or if that, too, could be continued in perpetuity.
These are important issues for which, as far as I can tell, very little actual evidence has been developed through study on which evidence-based policy could be developed. This, despite the calendar having run almost two and a half years since the start of the pandemic. I have yet to turn up any good evidence on whether and/or how requiring, allowing, or prohibiting juror masking might be skewing the makeup or operation of juries. I have yet to see any good evidence on whether and/or how virtual jury selection might be affecting how representative juries are of the communities from which they are drawn.
In a non-peer reviewed pre-print paper entitled Virtual Juries, jury expert Valerie P. Hans reported opinions of several judges that jury pools in civil cases were comparably or more diverse when selected virtually. These opinions were unbacked by any data on diversity, but only accompanied by data showing increased response rates to jury summonses.
She points out that “Even if civil litigants might be able to demonstrate that pandemic-era virtual jury selection resulted in a dramatically unrepresentative jury venire, whether a successful challenge could be mounted is doubtful, considering the balancing test that courts would use… Litigants challenging the representativeness of the venire in a civil case must show purposeful discrimination. Yet they rarely have knowledge of legal actors’ motives, and many lack access to basic information about the demographic characteristics of the jury pool that would be necessary to mount a challenge.”
As we have discussed in previous sessions, this lack of access to basic information that would be needed to prove a jury pool is insufficiently representative applies not only to the civil juries Hans discusses, but also in the criminal trial realm as well.
It continues to be a problem that the default position of courts is that whatever they decide is fine unless the accused can prove otherwise. And oh, by the way, they can’t prove otherwise because the court does not collect or give them access to the data that would be required to prove otherwise.
This is important information to have because the jury is meant to represent the conscience of the community. Part of how it does that is through the exercise of jury nullification when the charges being brought or perhaps the penalty in question or perhaps other factors make the prosecution offensive to the conscience of the community.
Jury Trials & Grand Juries—Conclusion of Masking and Social Distancing Requirements as of September 1, 2022; Adjustment to Initial Virtual Reporting for All Jurors (.pdf), New Jersey Supreme Court, 24 August 2022
N.J. jurors will no longer be required to wear masks as Judiciary lifts COVID rules, NJ.com, 25 August 2022
Virtual Juries (.pdf, pre-print, not peer-reviewed), Cornell Law School research paper No. 21-16, Valerie P. Hans
Government Files Motion In Limine to Preclude Jury Nullification in U.S. v. Freeman and Dimezzo
The prosecution in the case of U.S. v. Freeman and Dimezzo has filed a motion in limine to exclude certain evidence being presented in front of a jury. It cites the possibility of the evidence encouraging the jury to acquit the accused via jury nullification as a reason for this exclusion.
In March of 2021, the FBI arrested Ian Freeman, Aria Dimezzo, and four other people allegedly for their roles in operating an unlicensed money transmitting business dealing in cryptocurrency. In April of 2022, the government dismissed charges against one of those four and accepted plea bargains from the other three.
A superceding indictment was then filed against Freeman more than doubling the number of charges he faces from 11 to 25. Dimezzo’s charge count more than quadrupled from just 2 charges to 9.
The government argues in its motion that the evidence regarding the state of New Hampshire’s laws regarding registration requirements for money transmitting businesses are:
irrelevant, because this is a federal case where state law is not applicable, and
unduly prejudicial to the government, if it is relevant after all, because it invites jury nullification.
This type of motion is increasingly common in a variety of cases where the prosecution knows jurors could well feel sympathy toward the accused. One can see why the government would be particularly wary of allowing any hint of jury nullification to creep into this particular trial. Freeman in particular is a well-known advocate in New Hampshire of jury nullification. One of his co-defendants in the case who took a plea deal—a man formerly known as Richard Paul who has legally changed his name to Nobody—was also a prominent jury nullification advocate, having had his conviction reviewed by the New Hampshire Supreme Court and resulting in the neutering of what was once thought to be a jury nullification statute in New Hampshire.
Motion In Limine to Exclude Evidence of State Law (.pdf), U.S. v. Freeman and DiMezzo, 23 August 2022
More charges filed against Ian Freeman, Aria DiMezzo in bitcoin case, The Keen Sentinel, 22 April 2022
What About New Hampshire?: Dispelling a Common Misunderstanding about
Arguing for Jury Nullification in New Hampshire Courts. FIJA.org, 6 September 2021
FIJA Features
What Is a Fully Informed Juror?, 5 September 2022, noon Eastern/9 am, Pacific
Jury Rights Day, 5 September 2022
15 Minutes with FIJA - 29 August 2022