“Death Qualification” and Judge-Panel Sentencings in Capital Cases—Okay in Nebraska
In State v. Trail, the defendant challenged the constitutionality of Nebraska’s death qualifying of potential jurors, arguing that it creates a conviction-prone jury. Relying several SCOTUS precedents, the state supreme court rejected the attack on death qualifying. Mr. Trail also argued that the Cornhusker State is an “outlier” by permitting the determination of the death penalty to be made by a judicial panel, rather than a jury, and asserting the “noticeable trend away from judicial death sentencing” is strong evidence that society does not regard such a procedure to be proper or humane. To provide context, under Nebraska's capital-sentencing scheme, a jury, if not waived, only determines the existence of aggravating circumstances. A jury’s participation in the death-sentencing phase, if not waived, ceases after the determination of aggravating circumstances. A three-judge panel then determines the existence of mitigating circumstances, weighs aggravating and mitigating circumstances, and determines the sentence according to statutory guidelines. The state supreme court ruled that, by leaving to a three-judge panel the ultimate life-or-death decision after deciding whether aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or the Nebraska Constitution.
After Jury Deadlocks, Prosecutor Urges State Supreme Court to Require Judge Recusal on Retrial
According to the Hamilton (Ohio) Journal-News, Butler County prosecutor Michael Gmoser argued to the Ohio Supreme Court that Judge Greg Howard should be disqualified from presiding over a capital case scheduled to be retried due to a hung jury. In a recent hearing before the high court, Gmoser alleges the judge:
- Demeaned the seriousness of the case by not maintaining proper courtroom decorum (including permitting the defendant to “snack” in the courtroom like he was picnicking).
- Declined to replace jurors with alternates knowing two jurors were feuding and not deliberating.
- Failed to give the jury a requested transcript of a DNA expert instead instructing them to rely on their “collective memories” of that testimony.
- Failed to record possible juror misconduct at an unrecorded chambers conference in which “the judge stated that the bailiff had admonished one juror he observed at a nearby restaurant at lunch time looking for a newspaper to read.”
- Made crude, sexually oriented comments during the chambers conference in “mixed” company.
Connecticut Supreme Court Rejects Claim Governor’s Health Emergency Declaration Forced a Verdict
The Connecticut Post reports the state supreme court rejected an appeal by Jayvell Washington that his March 2020 murder conviction should be overturned because the jury was pressured to render a verdict on the day the governor declared a pandemic health emergency and intended to shut down government.
Failure to Investigate Report of “Discriminating Comments” During Deliberations Is Reversible Error
The Supreme Judicial Court of Massachusetts in Commonwealth v. Ralph R. ruled it was reversible error for a trial judge not to conduct a preliminary inquiry to determine whether the jury foreperson's statement about “discriminating comments” being made during deliberations amounted to a credible report of bias. However, the high court found the judge did not abuse his discretion by interviewing only one of two jurors who had fallen asleep during the trial.
Juror Reenacts Fatal Shooting at Her Home—Murder Conviction Overturned
The Washington Post informs us Virginia Circuit Judge Brett A. Kassabian vacated two guilty verdicts after finding a juror used her own rifle at home to test trial evidence in a murder case. During deliberations the juror reported her reenactment findings to fellow jurors.