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. This week being Halloween, in lieu of a live session, this is recorded as a podcast episode only.
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Click here to register for the live sessions through the end of December 2022.
Florida Study Documents Exclusion of Black Jurors
The Death Penalty Information Center reported this week on a study conducted by University of Central Florida criminal justice professor Dr. Jacinta M. Gau for the American Civil Liberties Union. The ACLU had appealed the murder conviction and death sentence of Dennis Glover, a client in Florida who had been convicted of first-degree murder for the death of a neighbor and sentenced to death by a non-unanimous jury on a 10-2 vote.
The Florida Supreme Court upheld Glover’s conviction in 2017, but ordered him to be resentenced following a United States Supreme Court case and a subsequent Florida Supreme Court case that invalidated the state’s previous death sentencing procedure. The ACLU then asked the prosecution to forego pursuing the death penalty a second time in light of numerous mitigating factors. The state reportedly refused to do so unless Glover admitted guilt—something he refused to do even to save his own life.
Dr. Gau was asked by the ACLU to evaluate 12 capital jury trials in Duval County, Florida regarding the impact of jury selection in these cases on prospective jurors by race. She analyzed two parts of the process in particular: both the death qualification process and the use of peremptory strikes.
Death qualification is a screening process unique to capital cases. It is designed to eliminate from the jury anyone who would under no circumstances either (a) consider a penalty of death or (b) consider a penalty of life without parole. In practice, hardly any prospective jurors refuse to even consider the option of life imprisonment with no possibility of parole, while many people adamantly oppose putting another human being to death and outright refuse to consider it. Consequently, such screening removes far more potential jurors who oppose the death penalty.
A peremptory challenge is a request to have a person excused from jury service without giving or having to justify a reason they would be an unsuitable juror. Each side gets a limited number of such strikes. A major exception to the rule is that peremptory challenges cannot legally be used to remove jurors on the basis of their race. However, this exception is easily circumvented by making up a non-race-based reason to excuse a juror if the other side believes a peremptory challenge has been illegally exercised.
Gau found that “in these 12 trials, conducted from 2010 to 2018, death qualification disproportionately excluded people of color, and Black people, who make up roughly 30% of this county, in particular. In every model examined, Black people, as were other jurors of other color, were excluded at rates more than twice of White jurors. This effect only became more concerning when the prosecutors’ peremptory strikes were
assessed for their cumulative likelihood of excluding jurors of color: fully two thirds of Black women otherwise eligible, qualified, and willing to serve were excluded by the combination of death qualification and prosecutor peremptory strikes, as were 55% of Black men.”
The ACLU reports that on October 21 of this year, the state relented in its pursuit of the death penalty. Glover has been resentenced to life without parole, thereby rendering moot the ACLU’s legal challenge to the racially-discriminatory process of jury selection in his case. However, other defendants have adopted an ACLU motion in Glover’s case, based on Gau’s study, to ban Florida’s death qualification process.
Banning Florida’s death qualification process would have implications well beyond the issue of skewing the composition of such juries to disproportionately exclude people of color. It would also reduce exclusion of other cognizable groups with more members who oppose the death penalty such as women and members of religions that conscientiously object to the death penalty.
Evidence also suggests that ending this process would reduce the potential for wrongful convictions by juries that are not only more likely to consider the death penalty, but are more likely to convict in the first place. And it would stop weeding out the prospective jurors most likely to consider exercising sentencing phase nullification in capital cases.
Florida Study Documents Disproportionate Exclusion of Black Jurors in Jacksonville Death Penalty Cases, Death Penalty Information Center, 28 October 2022
Racialized Impacts of Death Disqualification in Duval County, Florida (.pdf), Jacinta M. Gau, Ph.D. for the ACLU, October 2022
What is a "death-qualified" juror or jury?, Fully Informed Jury Association
What does jury nullification refer to in capital cases?, Fully Informed Jury Association
Court orders new sentencing for convicted Jacksonville killer, The Florida Times-Union, 14 September 2017
Hawaii Grand Jury Update
I also have a couple of updates this week on the grand jury situation in Hawaii. Recall from previous 15 Minutes with FIJA back in September that the Hawaii Supreme Court ruled that the only entity under current Hawaiian law that can indict someone of certain serious felonies is a grand jury.
Numerous Hawaiian government officials have gone on a tear clamoring about how much chaos and crime will result if the government is required to obey the law as it expects the rest of us to do. Noise has even been made about calling a special session to pass legislation to do something—though no specific proposals seem to have yet been floated publicly.
Though that has not changed as of yet, nor has a special session yet been called, there have been some developments. First, the state reportedly requested that the Hawaii Supreme Court reconsider its ruling in the case in of State v. Obrero, which ignited this firestorm to begin with. The Court denied the request.
Additionally, the Court is poised to take up the issue of a court rule allowing the state to imprison people for as many as 90 days under Hawaii Rules for Penal Procedure Rule 12 (g ) while they seek grand jury indictments. Again, I want to stress that such grand jury indictments have long been a requirement in these cases, but only recently have prosecutors faced any enforcement of this law in their work.
This appears to be another potential violation of Hawaii law by the government that is busy prosecuting others for violating the laws it actually wants enforced. Hawaii state statutes reportedly require that someone be charged within 48 hours in order to continue to hold them.
The Public Defender’s Office recently filed a petition asking the state supreme court to strike down the rule. The petition was filed on behalf of Scott Deangelo, who was improperly charged via a preliminary hearing instead of a grand jury. Charges against him were dropped after the ruling in State v. Obrero made clear that only a grand jury could indict him. Nonetheless, the state is using the rule in question to detain people like Deangelo even though charges have been dismissed while they try to properly charge them via a grand jury.
The state opposes the motion because numerous cases are now clogging up a system that has not traditionally provided a commensurate amount of grand jury capacity. However, Jon Ikenaga of the Public Defender’s Office points out that:
The prosecutors’ answer to our writ fails to explain why it is constitutional for a court to incarcerate an unconvicted, uncharged defendant for an extended period of time due to an error by the prosecutor’s office in charging.
The prosecutor’s response failed to take responsibility for the fact that the reason the complaints in the cases are being dismissed is because the prosecutor’s office failed to follow statutory requirements in charging. It is unfortunate that the prosecutor’s office is blaming the Public Defender’s office and the Supreme Court for its own errors in charging.
Hawaii Supreme Court denies state’s motion for reconsideration on State v. Obrero, KITV4, 28 October 2022
Prosecutors and defense at odds before Supreme Court, KHON2, 28 October 2022
Hawaii's high court is asked to strike down 90-day hold rule, Honolulu Star-Advertiser, 18 October 2022
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