Aggressively Defending My Clients Since 1990


On Behalf of | Mar 31, 2020 | Firm News

There are two principal ways for all citizens to participate in our democracy – at the voting booth and in a jury box. Thomas Jefferson considered “[T]rial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Alexis de Tocqueville said, “The jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.” Supreme Court Justice Byron White, in Duncan v. Louisiana (1967), wrote: “The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power – a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” All of these scholars agree the right to jury trial, as well as the right to vote, grants to the common man and woman the ability to determine issues in a democratic way.  The right to a “trial by jury” is “a valuable safeguard to liberty” and “the very palladium of free government.” The Federalist No. 83, at 499 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

So does a defendant have a right to jurors to appear in person for a criminal trial in the era COVID-19?

Federal and state courts in all 50 states have postponed jury trials and are struggling to try and maintain court functions and access to the justice system in light of the COVID-19 pandemic and public health concerns. As a result, there is a provision in Congress’ new $2 trillion proposed COVID-19 relief bill that allows for remote proceedings, such as video and teleconferencing in some court hearings.   The Wisconsin Supreme Court has ordered that, “Judges, commissioners and clerks of circuit court are required to utilize e-mail, teleconferencing, and video conferencing technology in lieu of in-person courtroom appearances through at least April 30.”

Someone, somewhere is going to propose that jurors at criminal jury trials appear on-line.  For instance, the New York Post reported:

A sick juror was allowed to FaceTime into deliberations on the final day of a Manhattan federal court trial amid New York’s coronavirus outbreak.
The man — one of 11 jurists weighing the fate Al Sadr Hashemi Nejad, an Iranian banker accused of violating US sanctions against the country — called the court Monday and reported feeling unwell and requested to stay home as a precaution.

Judge Alison Nathan, who said the court was under “extraordinary circumstances,” ruled the electronic deliberation could move forward.


Prosecutors in the case asked for a mistrial, arguing the man would not be sequestered in the same way other members of the jury are and would have access to the internet and other reading materials. Judge Nathan denied the request.
Hours after they began deliberating, the jurors voted unanimously to convict Nejad on a slew of charges including money laundering, conspiracy and fraud charges. He faces more than 100 years behind bars at sentencing.

On line jurors would present a number problems.

Technical problems
Normally, potential jurors appear together in a jury box in the courtroom.  They have the same surroundings.  Not so if a potential juror appears on line from home on some on line platform like Zoom.  This cause real problems.  Initially these platforms allow ease of access and broad information collection as default settings instead of thinking more completely about preventing harms or protecting privacy.  That is the opposite of what is needed for an on line jury trial.

A lesson can be learned from what happens to colleges that have been forced to have on line classes.  First, there is the problem of what is said on line during class time.  Many times statements are made that have little to do with course material but instead relate to other topics. These statements can be vulgar, racist, misogynistic toilet humor.  Are we to assume jurors, clothed in on line protection at home rather than the solemnity of a courtroom, would not behave similarly?  Even if it is not the jurors themselves, what about “zoombombing”?  Zoombombing is the process by which racist vitriol or pornographic content is shared with the group by an unwelcome user that infiltrate the online meeting.  In such circumstances, the online class must be shut down.

Think of the cost to the taxpayers of on line trials which are zoombombed at some point and must be started over again.

The nature of online lying
Research shows that contrary to what may be assumed, people do not lie more online than in real life.  However, the nature of lying on line would be a major concern for selecting a fair and impartial jury.  The same researchers, like Associate Professor of Department of Communications, UW-Madison Catalina Toma, explain that people who lie online do so to satisfy their interpersonal agenda.  Moreover, Prof. Toma also explains that “human beings are incredibly poor at detecting deception.”  So if a potential juror has as their online agenda to hide some attitude, such as racial bias, it likely will not be detected.

Denial of effective juror selection
Juror selection or voir dire is difficult.  One study concludes that “[v]oir dire was grossly ineffective not only in weeding out ‘unfavorable’ jurors but even in eliciting the data which would have shown particular jurors as very likely to prove ‘unfavorable.”‘  Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503, 505 (1965).  Voir dire is difficult because it is in reality a self-disclosure interview to obtain background and attitudinal information which might affect a juror’s decision in the case.  Virtual juor selection guarantees to inhibit rather than facilitate such self-disclosure.  Sitting at home answering questions a potential juror is far more likely to lie than when present in the formal atmosphere of an actual courtroom.

Voir dire is important to determine how a potential juror’s feelings may influence their thinking on the jury . To do so, an attorney must build rapport with the potential jurors.  A minimum level of rapport between the person conducting voir dire and the jurors is necessary for a productive dialogue.  This is grossly inhibited with virtual voir dire.

Jurors appearing by the internet interferes the making sure a jury is impartial.  An “impartial jury” is one that is “capable and willing to decide the case solely on the evidence before it,” Smith v. Phillips, 455 U.S. 209, 217 (1982), and that disregards any personal prejudices or biases. See, e.g., Powers v. Ohio, 499 U.S. 400, 411 (1991) (referencing a defendant’s “right to be tried by a jury free from ethnic . . . [or] racial . . .prejudice”); United States v. Maldonado-Rivera, 922 F.2d 934, 971 (2d Cir. 1990) (jurors must “be able to view the evidence with impartiality and to decide the case without bias”).

A major function of jury selection or voir dire is to screen jurors for conscious or unconscious bias.  Most agree that exposing racial bias can be hard to root out.  As the US Supreme Court explained in Peña-Rodriguez v. Colorado, 580 U.S. ___ (2017) (no-impeachment rule of jury verdict is set aside when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant), “generic questions” about racial bias may not go far enough to expose it, but more specific questions could actually make the problem worse.  An on line jury would exacerbate the problem of exposing racial bias since a juror can hide behind a computer screen.  The court concluded that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

Jurors are also told that the one exception to the sanctity of the secrecy to jury deliberations is if a juror in deliberations presents a racially motivated position for a position.  Jurors may be more reluctant to report racially biased statements by other members of the jury than, say, statements suggesting that a juror’s personal experiences with the subject matter of the dispute affected her vote.

Open and Public trials
The right to a public trial is a basic tenet of our judicial system, Walton v. Briley, 361 F.3d 431, 432 (7th Cir.2004), rooted in “ the principle that justice cannot survive behind walls of silence․” Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S.Ct. 1507 (1966).  The importance we as a Nation attach to the public trial is reflected both in its deep roots in the English common law and in its seemingly universal recognition in this country since the earliest times. Gannett Co. v. DePasquale, 443 U.S. 368, 414, 99 S.Ct. 2898 (1979) (Blackmun, J., concurring in part and dissenting in part).  Open and public trials are so important that the violation of the right is considered a “structural error” requiring automatic reversal.  Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827 (1999); Waller v. Georgia, 467 U.S. 39, 49-50 & n. 9, 104 S.Ct. 2210 (1984) (agreeing that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee” because such a requirement “would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.”)

The Sixth Amendment was written after our Founding Fathers knew of the notorious secret courts known as the Star Chamber under Charles I in the early 17th century.  The term “star chamber” became a generalized term for a private court that was accountable to no one (except the chief executive) and was used to suppress political dissent or eliminate the enemies of the regime.  See also, Wis. Const. Art. I, § 7 (the accused shall enjoy the right…to a speedy public trial).  See also, State v. Ndina, 2009 WI 21, 761 N.W.2d 612 (2009)

More recently, the Great Purges in the Soviet Union under Joseph Stalin are best remembered for the Moscow Trials, show trials in which the court became a parody of justice, most of the victims of the Terror were tried in secret. Mikhail Tukhachevsky and his fellow Red Army officers were tried in secret by a military tribunal, and their executions were announced only after the fact. The presiding judge of the Moscow Trials, Vasili Ulrikh, also presided over large numbers of secret trials lasting only a few minutes, in which he would quickly speak his way through a pre-formulated charge and verdict.

The Wisconsin legislature has recognized that public attendance at a jury trial is important:

The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of a scandalous or obscene nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses. Wis. Stat. § 757.14.  See, See State ex rel. Newspapers, Inc. v. Circuit Court for Milwaukee County, 65 Wis. 2d 66, 221 N.W.2d 894 (Wis. 1974)

However, the legislature has specifically failed to provide that a jury trial could be conducted by “audiovisual means.”  Wis. Stat. § 967.08.  There is no legal provision providing for the suspension of these constitutional or statutory rights.  See, Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loy. L. Rev. 471, 504 & n.189 (2015).  The Constitution only provides that habeas corpus may be suspended, not Sixth Amendment rights.  See, U.S. Const. art I., § 9, cl. 2

It cannot be reasonably claimed that jurors who are in their private homes not participating in a public trial.