Category Archives: jury

Bank of Nova Scotia v. United States

487 U. S. 250

June 22, 1988

A prosecutor led a grand jury on a lawless witch hunt against a bank and several associated individuals. The prosecutor violated several grand jury rules to secure 27 indictments. A District Court dismissed all the indictments because of the violations, using its supervisory power as a court of law. The government tried to salvage the case by claiming that the District Court could not exercise such a supervisory power unless the defendants were prejudiced by the violations, and that the alleged violations were all harmless error.

Regrettably, the Supreme Court agreed in an 8-1 vote. Kennedy said that Rule 52(a) very strongly implied that indictments could only be dismissed upon a finding of harmful error to the defendant. The indictments could be dismissed only if the abuses had substantial likelihood of pushing the grand jury to indict. Kennedy then went through an impressively long listing of prosecutorial abuse. For each and every instance, Kennedy found a way to argue that it probably would not have affected the grand jury’s final decision. Because all the errors were somehow harmless, the indictments had to be reinstated.

Scalia, concurring, noted that a District Court’s supervisory powers should generally be construed narrowly. Marshall filed a lonely dissent. He pointed out that it was extremely difficult to discover instances of prosecutorial abuse during a grand jury phase because of all the attendant secrecy. He contended that insulating prosecutors even further with a harmless error analysis was unfair. “Today’s decision reduces [grand jury rules] to little more than a code of honor that prosecutors can violate with virtual impunity.”

I think what really bothered me about this case was not the legal holding, but the majority’s application of it. I’m all for a single instance of harmless error being forgiven. What strained my credulity were the majority’s casual assurances that every single one of the long list of errors were all coincidentally harmless.


Ross v. Oklahoma

487 U. S. 81

June 22, 1988

When an Oklahoma court failed to excuse a potential juror from a capital sentencing panel, as required by Witherspoon, the defense lawyer eliminated this potential juror through a peremptory challenge. The defense ultimately used up all its peremptory challenges. When a death sentence was returned, Ross argued that it violated the Eighth Amendment because he lost one of his peremptory challenges to correct the court’s erroneous decision not to exlude an unqualified juror. Under last year’s Gray ruling, any errors that affected jury composition required overturning a death sentence.

The Court ruled 5-4 that the death sentence could stand. Rehnquist stressed that the final jury was conceded to be impartial and free of unqualified jurors, and that such a jury’s decision deserved the Court’s deference. With some unease, Rehnquist distinguished Gray as follows: “We decline to extend the rule of Gray beyond its context: the erroneous “Witherspoon exclusion” of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Finally, Rehnquist observed that losing one peremptory challenge was no great loss, because states could vary the precise amount of peremptory challenges, because Oklahoma law explicitly noted that they could sometimes be used to strike jurors for cause, and because Court precedents had allowed states to impose various limits on their usage.

Marshall, joined by Brennan, Blackmun, and Stevens, would have none of this. Gray controlled the case, plain and simple. Gray said that any error which could potentially affect the final jury composition required overturning the death sentence. Because Ross might have used his wasted peremptory challenge on another juror, the jury’s composition was potentially affected. Marshall found the majority’s grounds for distinguishing Gray totally unconvincing. He also said that peremptory challenges, once given, should be seen as entitlements that the state could not force the sacrifice of in order to correct a judge’s error.

This is one of those instances where the majority reached the right result for the wrong reasons. Gray obviously controlled, and could not be adequately distinguished. The majority should have had the courage and intellectual honesty to overrule it. Instead, they were a bunch of intellectually dishonest cowards, and they did the ‘we confine the reach of this precedent to its immediate facts’ thing. Screw that – Gray deserved to be overruled. In my final roundup of the 1986-1987 term, I even rated it as one of the four worst decisions of the entire year.

The Supreme Court never wants it to be thought that previous decisions can be overruled entirely on the basis of membership changes. This is, I’m fairly certain, the key to the majority’s intellectual dishonesty. Powell was gone, and Kennedy was his replacement. Gray would have been overruled based on a mere membership change. Yet again, here is a creepy prefiguring of Planned Parenthood v. Casey, in which Roe was reaffirmed, in part, because of the worry that overruling it would be accounted wholly to membership changes.

Mills v. Maryland

486 U. S. 367

June 6, 1988

Ralph Mills killed a fellow prison inmate, and was sentenced to death. The jury found no mitigating factors, and thus were not afforded the opportunity to decide whether life imprisonment would be a more appropriate sentence. Mills charged that the jury might not have known that they had to unanimously find no mitigating circumstances. If some (but not all) jurors thought there were mitigating circumstances, the death penalty should not have been automatically imposed. Lower courts ruled that reasonable jurors would understand that unanimity was required to reject the presence of mitigating circumstances.

Unfortunately, the Supreme Court disagreed in a 5-4 vote. Blackmun stressed that the jury forms did not explicitly spell out that the jury needed to be unanimous to find no mitigating circumstances. It was very plausible, Blackmun contended, that a reasonable juror might be confused. Because of the irreversible nature of the death penalty, it was of added importance that the Court be reasonably certain of how the jury interpreted their instructions. The majority vacated the death sentence, arguing that the jury could plausibly have understood the their instructions incorrectly.

Brennan filed his obligatory concurrence to say that the death penalty was always unconstitutional. Shockingly, Marshall did not join it. I guess he was too distracted by soap operas that particular day. Equally baffling was White’s decision to file a two-sentence concurrence which in essence said ‘I joined the majority opinion because I think it is correct.’ (Is White implying that he sometimes joins majority opinions he thinks are wrong???)

Rehnquist, joined by O’Connor, Scalia, and Kennedy, dissented. He analyzed the judge’s speech to the jurors, which stressed over and over the need for unanimity on every single question. Given this, a reasonable juror would not have misunderstood. Furthermore, Blackmun’s desire for reasonable certainty about the jury’s understanding was contrary to the previous year’s ruling in Brown. Finally, Rehnquist addressed a question that the majority set aside as moot: whether the death sentence was invalid because the trial involved a victim impact statement. Rehnquist here reiterated his belief that the Booth case about victim impact statements was incorrect and ought to be overruled.

I won’t belabor what I’ve said before in many other posts about the death penalty. This decision was absolutely horrible, and if you want to know more, you can start with the two decisions linked in the previous paragraph.

Business Electronics Corp. v. Sharp Electronics Corp.

485 U. S. 717

May 2, 1988

Two Houston retailers sold calculators manufactured by Sharp. Because one retailer (Business Electronics) was selling them way cheaper, the other retailer asked Sharp to cut off the supply to the first retailer. Sharp did so, and Business Electronics sued, citing the Sherman Antitrust Act. After being told that cutting off one retailer because of its lower prices was always illegal if done at the bidding of a more expensive retailer, a jury ruled for Business Electronics. Sharp contended that this was not always illegal, and should be judged by the antitrust ‘rule of reason.’

Scalia, writing for the Court, agreed that the ‘rule of reason’ must be used. The Court thus ruled 6-2 that the jury instruction was erroneous, and a new trial would have to be held (Kennedy did not participate). According to antitrust precedent, tacit agreements between suppliers and retailers were only per se illegal if they fixed prices. Because the second retailer remained free to set prices as they wished, there was no price fixing here. Citing the Sylvania case from 1977, Scalia said that the Court should be extremely cautious before finding any other collusion between supplier and retailer inherently anti-competitive. Because there were arguable pro-consumer reasons for wanting only one, more expensive retailer, Sharp was in the clear pending a new trial.

Stevens, joined by White, dissented. He found no evidence in the record that Sharp and the more expensive retailer had any noble purpose – instead, the facts showed that they were just blatantly attempting to line their own pockets by leaving the cheaper retailer high and dry. Because this restraint of competition had no noble purpose, Stevens felt the agreement was per se illegal. Furthermore, antitrust precedents held that retailer boycotts of suppliers were per se illegal. Stevens argued that by threatening to sever ties if Sharp did not cut off the cheaper retailer, the more extensive retailer was effectively doing a one-business boycott.

Stevens made a really good argument, but reading the jury instruction again, I do think a new trial was probably warranted. That said, I also think that the jury should still find for Business Electronics, even after being properly instructed.

Lowenfield v. Phelps

484 U. S. 231

January 13, 1988

So, this bad guy murders five people all in one go. Then, at sentencing, the jury seems to be at an impasse. Twice the judge polls the jury on whether more deliberation will help, and both times a majority of jurors say it will. The judge asks them to reach a conclusion if they can, and reminds them that the murderer will get life imprisonment if the jury cannot agree. Finally, the jury comes back with the death sentence. The aggravating circumstance that merited death was the five-fold nature of the murder – precisely what allowed the crime to be charged as first degree murder at all.

Rehnquist wrote for the Court that the death sentence was sound. The Court held 5-3 that the jury had not been coerced by the judge’s actions, and held 6-2 that the aggravating circumstance used was appropriate. Rehnquist noted that the judge never pressured the jurors to choose one sentence over another, just to come to a decision. He distinguished the case factually from other jury coercion rulings. What’s more, the defense counsel did not even object to the judge’s actions during the trial, so obviously any illicit coercion must have been extremely subtle. With regard to the aggravating circumstance being one of the factors that allowed for a first degree murder charge to be brought, Rehnquist noted that this was perfectly consistent with the 1976 death penalty cases. The point of the aggravating circumstance was only that it narrowed the field of death penalty candidates.

Marshall wrote the dissent, which Brennan joined in full, and Stevens joined on the coercion issue. He argued that a jury would only come to a verdict after 22 hours of deliberations if a judge was exerting pressure. He further noted that the judge’s repeated statement about life imprisonment must have functioned as tacit coercion to return with a death sentence. Finally, Marshall found it significant that the judge was informed which jury members were the most intransigent. On the issue of aggravating circumstances, Marshall blankly asserted that letting an element of the crime also function as a aggravating circumstance was unfair. It’s cases like this that give me an ever so slight appreciation for Justice Blackmun. As much as he hated the death penalty, he was sometimes willing to let sentences stand when the only argument against them were idiotic minutia.

Yates v. Aiken

484 U. S. 211

January 12, 1988

Once again we have a cold-blooded murderer trying to get out of his death sentence on specious grounds. He argued that a jury instruction might have caused the jury to think that proof beyond a reasonable doubt was not required for one element of the crime. Such jury instructions had been denounced by the Supreme Court directly in 1985, and more obliquely in 1979. The question was how to consider the jury instruction issue on collateral review when the murderer’s conviction occurred in 1982.

Unanimously, the Court held that the conviction must be overturned. Justice Stevens sidestepped any retroactivity analysis by simply saying that the rule against the challenged jury instruction had been firmly established in 1979, despite the fact that it wasn’t more explicitly spelled out until 1985. I absolutely hate decisions like this; they essentially force lower courts to play an unwinnable guessing game about what the eternally coy and vague Supreme Court really decided. Here’s the first unanimous case of the year where I badly wanted to see a dissent.

Buchanan v. Kentucky

483 U. S. 402

June 24, 1987

In the course of robbing a gas station, David Buchanan and Kevin Stanford repeatedly raped a 20 year old woman. Stanford then murdered the victim. The pair was tried jointly, and because Kentucky sought the death penalty for Stanford, the jury was ‘death qualified’ – i.e., no one who objected completely to the death penalty was allowed on it. Buchanan complained that having a ‘death qualified’ jury for his non-capital offenses was unfair, since it was more likely to convict. He also objected to the admission of statements by a psychologist who had performed a competency evaluation on him. They had been introduced by the prosecution to rebut statements from a different psychologist, who was testifying on Buchanan’s behalf.

The Court rejected both of Buchanan’s claims 6-3. With regard to the jury, Blackmun stressed the logistical, financial, and equitable problems that would result from having the co-defendants tried separately, with different juries. Furthermore, because a ‘death-qualified’ jury had been previously ruled a fair jury for a capital defendant, there was a Constitutional presumption of fairness for a non-capital defendant as well. With regard to the psychologist statements, Buchanan had opened up the door by having another psychologist testify in his favor – the state therefore had the right to rebut. Importantly, Buchanan had consented to the interview with the psychologist whose statements he objected to. Buchanan’s lawyer knew of this interview. Finally, none of the statements touched the crime at hand, skirting any self-incrimination issues.

Marshall dissented, and was joined by Brennan and Stevens. On the jury issue, Marshall found the ‘death qualification’ both highly prejudicial, and unnecessary. Because joint trials with one capital and one non-capital defendant happened so rarely, the extra cost and difficulty of different juries was ultimately an inadequate reason for consolidation. On the psychologist issue, Marshall argued that the statements were inapposite because they went only to his competency for trial, and not to his mental state at the time of the crime. Because neither Buchanan nor his lawyer could have anticipated the statements being used in the manner they were, they should have been ruled inadmissible (Stevens did not join this section – probably because he thought it was moot in light of the jury issue).

I think I’ve reached the point where the Brennan/Marshall shtick in criminal cases has finally lost all residue of charm and heroism. For a while it was still vaguely admirable in a strange way. But now I only find it tiring, pathetic, obtuse, and morally disgusting. Isaiah 5:20 summed it up: “Woe to those who call evil good, and good evil; Who substitute darkness for light and light for darkness; Who substitute bitter for sweet and sweet for bitter!

Tanner v. United States

483 U. S. 107

June 22, 1987

Government gives funds to local electric company. Electric company wants access roads built. Two guys named Conover and Tanner finagle contract to build access road. Sounds good, right? The government didn’t think so, and accused Conover and Tanner of defrauding them. An initial trial resulted in a hung jury, and the second trial’s jury convicted them. Later, jurors came forward with testimony that several jurors not only drank to excess, but also used marijuana and cocaine. Tanner and Conover accordingly sought to have the jury’s guilty verdict thrown out.

The Court ruled 5-4 that there could not even be an evidentiary hearing on the matter. O’Connor elucidated the rule that a jury verdict could not be questioned on the basis of juror testimony, unless it had to do with outside influence such as bribery. This rule, she said, was necessary to keep the jury system from effective destruction through unending post-conviction challenges to its verdicts. O’Connor further found this classic rule to be in harmony with the most recent version of the Federal Rules of Civil Procedure based on a reading of legislative history. The majority concluded by listing other ways jury behavior can be policed during a trial.

Marshall, joined by Brennan, Blackmun, and Stevens, dissented. Simply put, he felt all defendants had a right to a competent jury, and that Tanner’s jury was plainly incompetent. He found the legislative history of the Federal Rules unconvincing, and also expressed his view that drugs were essentially ‘outside’ forces on deliberation, similar to bribery. Finally, Marshall argued that safeguards during the trial stage on jury competence were inadequate in situations like Tanner’s.

On one crucial point though, O’Connor’s opinion was unanimous. Tanner argued that they had in no way defrauded the US government – at worst, they had only defrauded the electric company. The government made the astonishing claim that it was defrauded any time a recipient of its funds is defrauded. Thankfully, the Court saw that this was an unfathomably broad reading of the statute, and not subject to any useful limiting principle. The lower court was instructed to find Tanner guilty only if the evidence showed he conspired to cause the electric company to make misrepresentations to the government.

American citizens really dodged a bullet on the defrauding issue. As to the jury issue, there really doesn’t seem to be any good answer. The jury system has some massive flaws, but it’s frankly hard to think of a decent way to guard against them. Regardless, I have little sympathy for the dissenters – on this case, they were hoisted by their own petard. Constitutional law is packed to the brim with overbearing rules designed to protect defendants. The stringent rule against questioning jury verdicts is one of them. If you’re going to insist on all these silly prophylactic rules, it’s hardly fair to turn around and start complaining in the very rare instances where one of these rules works to the disadvantage of a defendant.

Gray v. Mississippi

481 U. S. 648

May 18, 1987

David Randolph Gray kidnapped and murdered a man by stabbing. During jury selection, the judge erroneously did not exclude five unqualified jurors, forcing the prosecutor to ultimately use all his peremptory challenges. When one potential juror, H. C. Bounds, expressed some trepidation about imposing the death penalty, the prosecutor asked for one of his peremptory challenges back so he could strike her. The judge instead removed her for cause, even though the judge had no legal authority to exclude her. After his death sentence was imposed, Gray appealed, claiming that the exclusion of Bounds rendered the jury verdict unlawful.

The Court ruled 5-4 that the exclusion of Bounds meant that Gray’s death sentence must be overturned. Blackmun said that her exclusion could not be treated as harmless error. He was unmoved by the argument that the judge should have excluded some other jurors and thus saved the prosecution some peremptory challenges, and argued that those jurors might have been found qualified had the judge questioned them further. Citing some precedent, he continued that any improper exclusion for cause, no matter what the intention, was simply not something susceptible to harmless error analysis. Finally, Blackmun suggested that it was improper for a prosecutor to use peremptory challenges on death penalty opponents anyway.

Powell concurred in all but the last argument. He thought that using peremptory challenges to exclude jurors who might obstruct a death sentence was a proper technique. Scalia, joined by Rehnquist, White, and O’Connor, dissented. He showed that at least five jurors the judge did not exclude were clearly unqualified to serve on the jury. Thus, the judge could have given a peremptory challenge back to the prosecution, and had this occurred the jury would have been identical. Since the judge’s mistake in striking Bounds did not actually change the jury’s composition, Scalia felt the error must be considered harmless.

This holding is an unadulterated abomination. It represents a sick and twisted perversion of justice. Never in all my study of law have I seen a death sentence be set aside for such a total non-issue. If this was not harmless error, then that term means nothing at all. By this ruling, five justices mocked and debased the spilled innocent blood of Gray’s victim, Ronald Wojcik. Effectively, they said that heartless murder was a lesser sin than excusing a juror from service for the wrong reason. It is only in a desperately disordered nation that more weight in the process of meting out punishments is given to the guileless error of a bumbling judge than the wickedness of a murderer.

Pope v. Illinois

481 U. S. 497

May 4, 1987

Pope was charged with selling obscene magazines. At trial, the jury was instructed to find him guilty if the average Illinois citizen would find the magazines without any literary or artistic merit. The jury found him guilty, but he appealed, arguing that the correct legal standard under Supreme Court precedent was whether a reasonable person, as opposed to an average local citizen, would find that the magazine lacked any redeeming merit. On this basis, Pope wanted his conviction overturned.

The Court ruled unanimously that the wrong standard had been used, but also ruled 5-4 that his conviction need not be overturned, and could be subjected to a harmless error analysis. White wrote for the majority, first making clear that the reasonable person test that was required by precedent would allow for redeeming merit to be found even if only a minority of the population would discern such merit. Moving on to harmless error, White said that remanding for that analysis was appropriate when the error made did not make the trial fundamentally unfair. He contended that a judge would be able to tell based on the evidence presented if a rational jury would still have convicted based on the correct standard.

Blackmun disagreed with the harmless error section, but thought that White’s description of the legal standard for obscenity was all right. Brennan wrote to say that no regulation of the sale of obscenity to adults was Constitutional in his view due to the impossibility of knowing what is and is not permitted. Stevens, joined by Brennan, Marshall, and Blackmun, showed that Court precedents mandated that convictions must be overturned when the error has to do with an element of a crime that must be proven beyond reasonable doubt. Then, in a section not joined by Blackmun, he argued that the reasonable person standard was vague, standardless, and completely unworkable. In view of the difficulty of defining unprotected obscenity, Stevens thought that it could not be Constitutionally criminalized.

Scalia filed a fascinating concurrence. He explained that he had joined the majority out of faithfulness to precedent, but harbored doubts about whether the reasonable person standard meant anything. “I must note, however, that, in my view, it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can.” Haha, take that Duchamp and Warhol!!!

I keep in mind what Jesus said in Mark 9:42. “Whoever causes one of these little ones who believe in Me to sin, it would be better for him if a great millstone were hung around his neck and he were thrown into the sea.” In my opinion, the Supreme Court was horribly wrong to to allow obscenity so long as it retained some ‘redeeming’ literary or artistic ‘merit.’ Sexual sin is sexual sin, no matter what literary qualities the work possesses. Furthermore, it’s often true that the non-obscene parts of such works are also quite evil. To give an example, Ulysses getting banned for a decade because of the masturbation scene was a bit like Al Capone going to jail for tax evasion.