Juror Misconduct Law in Review

By: Nilgun Aykent Zahour: SM JUROR Attorney & Juror Misconduct Legal Strategist
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  • Summary

  • Juror Misconduct Law in Review is hosted by Attorney Nilgun Aykent Zahour from SM JUROR where our motto is: "Don't let juror misconduct taint your verdict." We analyze current state and federal juror misconduct cases and provide attorneys with strategies to identify, preserve and advance juror misconduct issues at trial, and on appeal, under the abuse of discretion standard of review.
    2019 SM JUROR, INC.
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Career Success Economics
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Episodes
  • #27: What to do with the laughing juror

    #27: What to do with the laughing juror
    Dec 12 2019
    State v. Baumgartner, No. 46386, 2019 WL 6463113 (Idaho Ct. App. Dec. 2, 2019). Summary: In Episode #27 of the SM JUROR Podcast, Juror Misconduct Law in Review, Attorney Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Baumgartner, No. 46386, 2019 WL 6463113 (Idaho Ct. App. Dec. 2, 2019). Issue: What to do with the laughing juror. Hi everyone!  This is Nilgün Zahour from SM JUROR and in Episode 27 of our podcast, Juror Misconduct Law in Review, we’re going to examine the juror misconduct issues in the case of State v. Baumgartner, which is out of Idaho.  This case was decided on December 2, 2019 and I’ll be sure to put the full citation of the case in our episode notes.  If you enjoy our podcast, please write us a review in the Apple Podcasts app. Your reviews encourage us and help others choose our podcast. Now in today’s episode, we’re going to address what to do with the laughing juror. When you think about it, this could really be a lawyer’s nightmare if it isn’t handled correctly. What if a juror is laughing at you, your client, a witness or even the judge?  How can you address this problem in terms of juror misconduct so that your client is not denied a fair trial? To get you in the right mindset, let’s visualize a hypothetical scenario with a laughing juror. Unless there is something comical in the trial testimony or presentation of the evidence where everyone may be briefly amused, an individual juror laughing during trial could be cause for concern. Now in this case, the defendant, Baumgartner, was convicted of various drug-related crimes.  He represented himself during trial and also pursued his own appeal.  He had three challenges related to the composition of the jury. First, he argued that the district court inappropriately denied his right to use his peremptory challenges to remove two jurors who were allegedly laughing at him or “belittling” him. Second, he argued that his jury was not composed of a “a local jury”, and third, he argued that the district court inappropriately removed a juror in the middle of trial without providing a reason or obtaining Baumgartner’s consent. Of these three arguments, the Court of Appeals chose only to address the first argument about the laughing and belittling jurors. The problem with Baumgartner’s second and third arguments was that these arguments were raised for the first time on appeal, and as such, were waived.  Remember, when you’re dealing with juror misconduct issues, you’re dealing with the abuse of discretion standard of review.  This means that you are arguing to the reviewing court that the trial court abused its discretion when it ruled on the juror misconduct issue you presented to it during trial.  If you did not present a juror misconduct issue to the trial court, then you cannot bring it up for the first time on appeal, under a de novo standard of review. Unfortunately, many attorneys prepare their juror misconduct legal arguments and appellate briefs with the misconception that the reviewing court will give them “a second bite at the apple” by deciding the issue in their favor.  However, under the abuse of discretion standard of review, the reviewing court’s analysis is not to re-decide the juror misconduct issue, nor decide the juror misconduct issue for the first time. Instead, the reviewing court’s job is to decide whether the trial court’s handling of the issue was an abuse of the trial court’s discretion. So here, Baumgartner’s second and third arguments were not even considered by the Court of Appeals since Baumgartner raised them for the first time on appeal.  The only remaining juror misconduct issue then was the purported laughing and belittling jurors. Now remember, Baumgartner was a pro se litigant and a pro se appellant. He framed his issue by claiming that the district court denied his right to exercise his peremptory challenges to remove two jurors who were laughing and belittling him. Let’s look at the specific scenario.  During trial when the jury returned to the courtroom to receive their final jury instructions, Baumgartner claimed he heard a juror laughing.  He told the district court that he “would like to preemptive challenge that person.”  In response, the district court stated it did not hear laughter. Although we are dealing with a pro se litigant, procedurally what is happening here?  Baumgartner hears a laughing juror and he objects to that juror and moves to remove the juror by using his peremptory challenge. In response, the district court indicates that it did not hear any laughter and the trial proceedings continue. The issue here was that Baumgartner wanted to exercise the use of his peremptory challenge to remove the juror. The problem was, however, that peremptory challenges are only available during the jury selection process.  If you don’t use your peremptory challenges during the jury selection process, you ...
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    12 mins
  • The SM JUROR Podcast #26: Does the jury's inadvertent consideration of the defendant's insurance policy result in prejudicial juror misconduct?

    The SM JUROR Podcast #26: Does the jury's inadvertent consideration of the defendant's insurance policy result in prejudicial juror misconduct?
    Oct 19 2019

    Unit Drilling Co. v. Gilmore, No. 13-17-00594-CV, 2019 WL 5089763 (Tex. App. Oct. 10, 2019).

    Summary: Attorney Nilgün Aykent Zahour analyzes the juror misconduct issues in Unit Drilling Co. v. Gilmore, No. 13-17-00594-CV, 2019 WL 5089763 (Tex. App. Oct. 10, 2019). Issue: Does the jury's inadvertent consideration of the defendant's insurance policy result in prejudicial juror misconduct?
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    10 mins
  • #25: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant?

    #25: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant?
    Oct 14 2019

    State v. Rojas, No. 2 CA-CR 2018-0271, 2019 WL 4051861 (Ariz. Ct. App. Aug. 28, 2019).

    Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Rojas, No. 2 CA-CR 2018-0271, 2019 WL 4051861 (Ariz. Ct. App. Aug. 28, 2019). Issue: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant? 

     
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    17 mins

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