Posted on April 9, 2008 by Anthony Lake

Supreme Court Reversal on Batson Grounds

   Jeffrey Brooks was a student at Southern University in New Orleans. Allen Snyder was a Louisiana man on trial in a Louisiana court for the first degree murder of his wife, Mary. And Mr. Brooks was a member of Synder’s jury panel.

   The prosecution and defense winnowed the 85 prospective jurors of the panel down to 36 through challenges for cause. Five of the remaining 36 prospective jurors were African-Americans, including Mr. Brooks. The prosecutor proceeded to eliminate the remaining African-American jurors through the use of peremptory strikes. In the case of Mr. Brooks, the prosecutor offered the alleged race-neutral reasons that Mr. Brooks allegedly looked “very nervous” during questioning, and that he was a student teacher and therefore allegedly might be more inclined to render a guilty verdict on a lesser charge so that he could return to his teaching duties.

The defense made an objection pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), which the trial court overruled. Snyder was convicted of first-degree murder and appealed alleging Batson error, however the Louisiana Supreme Court affirmed the conviction. The United States Supreme Court then granted cert in Snyder v. Louisiana, 128 S.Ct. 1203 (March 19, 2008).

The majority, led by Justice Alito, reiterated the test in Batson for adjudicating a claim that a peremptory strike on a juror was based on race:

“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[;] [s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[;] [and] [t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.”

Id. at 1207 (quoting Miller-El v. Dretke, 545 U.S. 231, 277, 125 S.Ct. 2317 (2005) (Thomas, J., dissenting); quoting Miller-El v. Cockrell, 537 U.S. 322, 328-329, 123 S.Ct. 1029 (2003)). The majority found that the trial court did not make any specific findings regarding Mr. Brooks’ alleged demeanor on the record, and rejected his alleged nervousness as a possible ground for upholding the strike. Id. at 1209. Furthermore, the Court found that Mr. Brooks’ student teaching obligations were a suspicious ground on which to uphold the strike, noting that no less than 50 members of the panel expressed concerns that jury service would interfere with work, school, family, or other obligations; that the dean of the university had told the Court that Mr. Brooks could make up his missed work; that, after hearing the dean’s statements, Mr. Brooks no longer seemed concerned about serving on the jury; and that even the prosecution anticipated that trial would be relatively brief. Id. at 1209-1211. It further noted that the prosecution had accepted white jurors with conflicting obligations at least as, or more, important as Mr. Brooks’, and cited several examples. Id. at 1210.

      The majority held that the prosecution’s pretextual explanations supported an inference that the strike was motivated in substantial part by a discriminatory intent pursuant to Batson, and that the state had produced no evidence that the factor was not determinative in the strike. Id. at 1212. It then reversed the judgment of the Louisiana Supreme Court and remanded Snyder’s case. Id.
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Posted on April 4, 2008 by Thomas Withers

Through the Looking Glass - The Wecht Jury is Deadlocked - Deliberations Continue

The case of the Wecht jury deliberations gets curiouser and curiouser. Remember now, since deliberations began on March 18, 2008, the jury has deliberated on only 8 of the intervening 22 days, and they have had two consecutive four day weekends. The irony here is that the defense has blasted the district court for months now, alleging judicial bias, but if there is a way to interrupt the continuity of jury deliberations, it is to have them deliberate only 5 hours and a half hours  a day and only 3 days a week. The result, 22 days after deliberations began, the jury has deliberated a total of approximately 44 hours. Not surprisingly, out of this jumbled deliberation arises jury confusion, over what appears to have been a weak case to begin with (see earlier post here).  

The latest saga began when a male juror took ill on Tuesday (see here). Judge Schwab then dismissed the juror, apparently without any inquiry of the juror’s physician, and without taking any testimony from the juror. A rare move indeed. The defense filed a motion to vacate that order (see brief here). I would argue that the defense has an absolute right to have the issue of the juror’s physical ability to continue deliberations vetted in open court, on the record. Not surprisingly, defense counsel objected vehemently, and now we know why – this juror was a male prison chaplain.

In an earlier post, I posed the question, whether the stuff of this case had the makings for a federal criminal prosecution. Not to prejudge before the case is done, but the jury’s apparent deadlock suggests the obvious answer.

To complicate things and to move the case further down Alice’s rabbit hole, the jury today announced that “they are deadlocked”. The court then individually questioned each juror about whether they were, in fact, deadlocked, and then, each juror having answered in the affirmative, the court sent them back to continue deliberations!! Not surprisingly, the defense was apoplectic. And, to round this bizarre course of events out – no deliberations tomorrow – the jury returns to continue deliberations on Monday.

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Posted on April 1, 2008 by Anthony Lake

United States v. Svete: Fraud Requires Scheme Calculated to Deceive "Reasonable Person"

The Eleventh Circuit Court of Appeals has issued a ruling which confirms one more element which the government must prove, and which the jury must be instructed on, in order to convict a defendant of fraud. In United States v. Brown, 79 F.3d 1550, 1557 (11th Cir. 1996), the Eleventh Circuit held (or re-confirmed) that, in order to prove the crime of mail fraud, in violation of 18 U.S.C. § 1341, “the government must show the defendant intended to create a scheme ‘reasonably calculated to deceive persons of ordinary prudence and comprehension.”’ (Quoting Pelletier v. Zweifel, 921 F.2d 1465, 1498-99 (11th Cir.1991)). Last week, in United States v. Svete, NO. 05-13809, 2008 WL 788407, *7 (11th Cir. March 26, 2008), the holding of Brown was finally applied to Eleventh Circuit Pattern Jury Instruction (Criminal Cases) 50.1, which, as the Court noted, “does not include the reasonable person standard as articulated in Brown…” id.

In Svete, the defendants were convicted of conspiracy, money laundering and mail fraud for allegedly defrauding investors in “viaticals,” in which persons (“viators”) sell the right to receive benefits under their life insurance policies to purchasers in exchange for tax-free cash. Id. at *1-2. The government alleged that the defendants defrauded purchasers of viaticals by misrepresenting the life expectancies of the viators, the status of the life insurance policies and the risks associated with purchasing certain viatical contracts. Id. at *2. The defendants appealed, arguing that the district court erred in failing to instruct the jury consistent with the language of Brown, and the Eleventh Circuit reversed, stating that:

The inaccuracy of the definition of “scheme to defraud” in the jury instruction seriously impaired defendants' ability to conduct their defense on the substantive counts of mail fraud. Defendants did not have the opportunity to argue in connection with charged law that the contracts, signed by the investors, made it unreasonable for any prudent investor to have relied upon contrary statements by sales agents or [the Defendants’] promotional literature. Defendants did not have the opportunity to argue in connection with charged law that investors should have sought independent advice on investing in viaticals. Such arguments are clearly contemplated by controlling law in this Circuit. Therefore, the district court abused its discretion when it did not include the Brown, [cit.]., language in the jury instruction. [Defendants] are entitled to a new trial on the substantive counts of mail fraud.

 Id. at *7 (citing Brown at 1557).
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