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May 28, 2024
Justice Gorsuch dissents from cert denial in case contesting SCOTUS precedent allowing six-member criminal juries
Today's order list from the Supreme Court has one (non-criminal) grant of certiorari as well as one opinion dissenting from a (criminal) denial of certiorari. This opinion, in Cunningham v. Florida, No. 23–5171, was authored by Justice Gorsuch, and jury-trial fans will want to read all three pages. Here is how it starts and ends:
“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U.S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9). Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations. See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.
Florida does what the Constitution forbids because of us. In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U.S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6)....
Respectfully, we should have granted review in Ms. Cunningham’s case to reconsider Williams. In the years since that decision, our cases have insisted, repeatedly, that the right to trial by jury should mean no less today, and afford no fewer protections for individual liberty, than it did at the Nation’s founding. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); Ramos v. Louisiana, 590 U. S. 83 (2020). Repeatedly, too, our cases have warned of the dangers posed by the gradual “‘erosion’” of the jury trial right. Apprendi, 530 U.S., at 483 (quoting Jones v. United States, 526 U.S. 227, 248 (1999)). Yet when called upon today to address our own role in eroding that right, we decline to do so. Worse still, in the last two years we have now twice turned away thoughtful petitions asking us to correct ourmistake in Williams. See Khorrami, 598 U.S., at ___ (slip op., at 10).
If there are not yet four votes on this Court to take up the question whether Williams should be overruled, I can only hope someday there will be. In the meantime, nothing prevents the people of Florida and other affected States from revising their jury practices to ensure no government in this country may send a person to prison without the unanimous assent of 12 of his peers. If we will not presently shoulder the burden of correcting our own mistake, they have the power to do so. For, no less than this Court, the American people serve as guardians of our enduring Constitution.
May 28, 2024 at 09:47 AM | Permalink
Comments
Here in Kentucky, defendants have the right to trial before 12 jurors in felony cases, but in misdemeanor cases (where the defendant can receive a sentence of up to 12 months in jail) defendants are entitled only to a jury of 6 members. I have long found this practice strange and disconcerting, although as a practical matter, I don't think having 6 more jurors would have changed the outcome. Under Kentucky law, the jury recommends a sentence after conviction, and the Judge must sentence the defendant at or below the recommended sentence. A few years ago, we had a female DUI defendant (3rd offense, which is a misdemeanor in Kentucky) who lied to counsel about whether she had been driving the vehicle; her position was that she was asleep in the back seat, and that her boyfriend was driving the car. The boyfriend had told defense counsel that he was driving the vehicle and that he would so testify at trial. But then the boyfriend failed to appear pursuant to his trial subpoena, so we presented an essential witness affidavit and the Judge postponed the trial until the witness could be found. The Judge issue a Material Witness warrant, and the witness was eventually found and arrested and held in jail for 60 days until the next trial date. He then changed his testimony and stated that he and the defendant had changed seats while the police were pursuing them with blue lights, so that he was in the driver's seat and his girlfriend climbed over into the back seat and pretended to be asleep, in an effort to avoid being arrested for 3rd offense DUI. Having lied to her defense counsel, the witness was convicted by a 6-persona jury, but the jury was judicious about their sentencing recommendation, for the minimum jail sentence (60 days) but the maximum fine ($1,000). Anyone who thinks that a sentence of up to 12 months in jail isn't worth having 12 jurors has never spent 6 months or 12 months in jail.
Posted by: Jim Gormley | May 28, 2024 11:24:52 AM
I have seen a single felony case where the Circuit Judge strongly disagreed with the 12-person jury's sentencing recommendation, and told the defendant so, before sentencing him to what the jury recommended. This was an ugly teen sexual abuse (statutory rape) case, where the male defendant had been one of the female student's high school teachers. He had repeatedly had sex with her between ages 15 and her early 20s (the sex continued long after her high school graduation). He had even been so bold as to get the girl out of classes and take her to remote, unoccupied parts of the school to have sex with her in the school building during the school day. This case was prosecuted 40 years after the girl graduated from high school. The teacher was at that time teaching in U.S. Army schools in Okinawa, Japan, so the prosecutors had been concerned about the extradition proceedings they would have to go thru to get the defendant back to Kentucky to be prosecuted. But then they learned that he had flown from Japan to Pennsylvania to spend the Christmas holidays with family, so they got a warrant issued and he was arrested in Pennsylvania and extradited to Kentucky. One of the prime witnesses against the male teacher was a female (lesbian) middle school art teacher, who had first molested the girl while she was in Middle School (13 years old), before she moved to the high school. The female teacher was in a local swingers group with the male high school teacher, and she effectively passed the vulnerable student off to him when the girl advanced to high school. She continued to see and have sex with the girl and the male teacher during her high school years (and afterward). The 12-person jury recommended a sentence of only 6 years for the male teacher, who by the time of trial was in his mid-60s. The Judge told the defendant at sentencing that he was constrained by the jury's recommendation to give him only 6 years, but also stated that if it had been up to him alone, he would imposed a life sentence.
Posted by: Jim Gormley | May 28, 2024 11:42:00 AM
As a practicing attorney, I am troubled by the willingness of the current batch of justices to reconsider precedent. One of the things that prosecutors consider in making a recommendation and that competent counsel considers in advising their clients on offers is the chances of a conviction that will hold up on appeal. Likewise in trying cases, we consider whether potential evidence might lead to a reversal on appeal. When appellate courts set a low bar to changing the law, we have much less certainty which makes it harder to resolve cases.
Posted by: tmm | May 28, 2024 12:14:06 PM
As the reader may appreciate from the foregoing post, there is no statute of limitations on felony charges in Kentucky. The victim was molested beginning in 1978, but the criminal cases weren't indicted until 2009 (or so). What happened with the female teacher who initially molested the victim in Middle School is legally interesting. She cut a plea deal with the Commonwealth to cooperate and provide testimony against the male teacher. In exchange, she would receive probated sentences for the felony charges, but no jail time. But then when she came before a Judge to enter her plea in 2009, he refused to accept the plea because it provided for no jail time for such serious charges. The Commonwealth then dismissed the felony indictment against the female teacher and recharged her only with misdemeanors, pursuant to a criminal information. The prosecution was effectively limiting the Judge's sentencing discretion to the 12-month maximum for misdemeanor convictions. The recommended sentence was 1 week in jail, followed by 90 days of home incarceration and 90 days of unsupervised probation. Before the Judge accepted the proposed deal, he called the victim to the bench and asked her if it was enough to suit her. She said that it was, because she needed to get all of these horrible events from her past resolved and behind her. This the Circuit Judge sentenced the female teacher pursuant to the proposed plea deal. The criminal cases against the 2 teachers were belatedly pursued after the victim won a $3.7 million civil judgment (following a civil jury trial) against the Fayette County Board of Education concerning the sexual abuse and statutory rape by the two teachers. The victim was able to pursue the civil case 35+ years after the fact because of a unique holding under Kentucky law: because school officials did not refer the allegations made about 1980 by the victim's mother to the School Superintendent, to the police for criminal investigation, the statute of limitations for civil lawsuits was tolled! When the local newspaper made an Open Records Act request to find out how much money the Board of Education had spent on attorney's fees defending the civil lawsuit, they were shocked to learn that the BOE had paid only their $1,500 deductible under an insurance policy, which covered the allegations and the duty to defend against the complaint. The trial verdict was upheld on appeal by the Kentucky Court of Appeals in a 53-page unpublished opinion. Most unpublished opinions in Kentucky are only a few pages long. This 53-page opinion was made "unpublished" just because it is too embarrassing to have printed in published reporters. The victim and her attorneys were actually paid the $3.7 million bu the insurance carrier.
Posted by: Jim Gormley | May 28, 2024 12:38:13 PM
Readers can find the 53-page unpublished opinion (referred to above) in "Fayette County Public Schools v. Maner", Appeal No. 2007-CA-002243-MR and 2007-CA-002395-MR (Ky. Ct. App. May 22, 2009). The Court of Appeals affirmed the $3.7 million judgment in Ms. Maner's favor, and the subsequent Application for Discretionary Review at the Kentucky Supreme Court was denied.
Posted by: Jim Gormley | May 28, 2024 2:56:16 PM
Who cares? Well, actually I do. I tend to agree with Gorsuch.
But here's the development of the day: https://www.nationalreview.com/corner/the-cat-is-out-of-the-bragg/?utm_source=recirc-desktop&utm_medium=homepage&utm_campaign=right-rail&utm_content=corner&utm_term=first
This is absolutely insane. Everyone involved in this prosecution needs to spend the rest of their miserable lives in prison.
Posted by: federalist | May 28, 2024 4:31:04 PM
As a practicing defense counsel in a jurisdiction where one can get a LWOP sentence from an 8 person jury, requiring only 3/4 [6] votes to convict [military courts-martial], I've followed this case with a bit of interest. However, as a vehicle for cert., it didn't stand the proverbial "snowballs chance in hell" for obtaining it.
First, there was a major preservation issue - the defense didn't object at trial on this basis; and second, a significant jurisdictional issue, i.e., the Petitioner (for reasons that aren't clear) failed to seek review by the Florida Supreme Court. Thus, the question became, did SCOTUS have jurisdiction?
Posted by: Don Rehkopf | May 29, 2024 1:53:29 PM
My gut is that it makes sense to have smaller juries for smaller cases. I think a 6-person jury for a misdemeanor is fine. But I don't like a 6-person jury for a trial that results in an 8-year sentence.
Posted by: William Jockusch | May 29, 2024 4:54:24 PM
WJ :
Is jury size a choke point for criminal court dockets? I can imagine voir dire would go faster, but how much faster? How many alternates would be seated? Trials might be a little shorter except for sequestered juries (which are rare) with only half the schedules and availability to factor in.
Also just to bring up the obvious, unless SCOTUS overrules Batson (it could happen), whatever you save with a smaller jury might get lost again in appellate procedure. Reason is that blacks are 12.1% of the population but 1/6 of a 6-man jury is 16.6%. So just by luck of the draw you'd sometimes get juries that had no blacks on them. Now many people have no problem with that but if it leads to appeals that gum up the works its not really a net benefit. On the other hand if you always sat one black juror then you might significantly increase the risk of hung juries or attempts at nullification in cases with black defendants. I'll take a leaf from Bill's book and wager that its easier for a juror to hold out against five other jurors than against 11. Remember Twelve Angry Men?
I think the 12-man jury serves us well and is a stable tradition for good reasons. But, if some municipality did an experiment with misdemeanors and case clearance rates went way up with 6-man juries, I could be won over to your argument.
But don't over 90% of cases plead out or get dismissed anyway?
Food for thought MAGA
Posted by: MAGA 2024 | May 29, 2024 11:40:30 PM
MAGA, Batson does not require proportionality. It merely requires a race-neutral (and gender-neutral) reason for the strike which the judge (and appellate court finds credible). A smaller jury might make a Batson objection less credible as you would have fewer minorities in the pool for potential strikes. For example, assume that each side gets six strikes. For a 12-person jury, that would be a pool of twenty-four venirepersons which would in the fictional average jurisdiction would have three minority venirepersons. If you struck venirepersons at random, you would probably strike one minority venireperson and striking two would not be unusual or hinting at racial motivations but striking all three would be a red flag. But for a six-person jury, you might only have two minorities with, again, random selection likely to result in a strike to one minority venireperson but a second strike being statistically plausible (occurring at random may 3-4% of the time).
In any case, it is unlikely that a defendant would appeal just because of a Batson claim. They are going to appeal because they do not like the outcome. And, if the trial court follows the law, Batson claims are not that successful on appeal. So having one more theoretical appellate issue related to Batson would not gum up the works on appeal.
Posted by: tmm | May 30, 2024 10:33:38 AM
TMM,
Thanks for shedding light on this stuff. I had the impression that Batson challenges were more common. Maybe they are in Indiana, where a few Batson-based appeals were successful.
Here are some instances:
https://www.theindianalawyer.com/articles/34239-judges-reverse-convictions-due-to-batson-challenge-error
https://www.theindianalawyer.com/articles/28200-justices-address-batson-challenges-in-2-appeals
In the second piece, one appeal succeeded and one failed.
I can't find it right now, but there was also a case where an Indianapolis attorney took a moving violation to court but managed a successful Batson challenge. As I recall the attorney was white. Talk about taking your parking ticket to the Supreme Court LOL
Thanks again MAGA
Posted by: MAGA 2024 | May 30, 2024 2:45:50 PM
Trump convicted on all 34 counts!
O frabjous day! Callooh! Callay!”
Posted by: anon14 | May 30, 2024 5:26:30 PM
MAGA. I don't know enough about Indiana. I think we see them occasionally on appeal. Many states, my state included, has a word limit on briefs which tends to force appellate attorneys to focus on three or four claims. If the prosecutor does their job right (takes good notes, have a race-neutral justification that applies to all venirepersons regardless of race, and make records-based distinctions on the close calls), Batson claims are not a significant problem on appeal. A defendant who goes to trial and receives a sentence of any length will appeal and let appellate counsel figure out which claims have merit and a competent defense attorney can find something that they can claim as error.
In my state, since the start of 2021, I could find eight cases noting Batson claims on appeal. Seven of the eight were affirmed with four by unpublished opinions. In the eighth case, the conviction was reversed because of problems with an incomplete transcript. In short, Batson challenges are somewhat common at the trial level here, but less common at the appellate level (whether because judges are granting Batson objections at the trial level or the prosecution is making a good record when the objections are denied).
In any case, the size of the jury has marginal impact on Batson. What would matter for Batson is the number of strikes. The same could be said for other jury-related issues like challenges for cause. In theory, a larger jury to be selected might lead to judges calling in a larger venire panel which would, on average, cause more venireperson to be excusable for cause. But, again assuming that the judges and attorneys follow the rules, that would not lead to a problem on appeal.
Posted by: tmm | Jun 3, 2024 4:28:29 PM
TMM,
Thanks for following up!
MAGA
Posted by: MAGA 2024 | Jun 4, 2024 12:15:35 AM
