May 2002 - Department of Public Advocacy

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promises that you made by raising your hand taking the oath,
that you would deliberate upon a verdict, to try and reach a
verdict. And we told you at the outset it would not be an
easy task, but we know you can rise to the occasion.” One
hour after giving the instruction, the judge dismissed the
jury for the day.
The next morning, Pitts moved for a mistrial, arguing that the
supplemental instruction was coercive. As he was arguing,
the jury returned with its verdict. The Michigan state courts
denied relief on this issue.
It is undisputed that “the complete denial of counsel during
a critical stage of a judicial proceeding mandates a presumption
of prejudice.” Roe v. Flores-Ortega, 528 U.S. 470, 483
(2000). A supplemental jury instruction is a “critical stage” of
a trial. Rogers v. U.S., 422 U.S. 35 (1975). The absence of
counsel during a critical stage of trial is per se reversible
error. U.S. v. Cronic, 466 U.S. 648, 666 (1984). “The existence
of [structural] defects—deprivation of the right to counsel,
for example—requires automatic reversal of the conviction
because they infect the entire trial process.” Brecht v.
Abrahamson, 507 U.S. 619, 629-630 (1993).
Instructions to Deadlocked Jury
Should Not be Coercive and
Ideally Should Follow ABA Model Instruction 5.4
The 6 th Circuit also notes that the trial court’s supplemental
instruction was inappropriate “and likely had a substantial
and injurious influence on the jury’s verdict.” The trial court
should have continued to use the Michigan standard jury
instruction, which was based on ABA standard jury instruction
5.4. This instruction specifically “minimize[s] any coercive
effect of jury instructions.” In particular the model jury
instruction reminds jurors “they should not give up their
honest convictions solely because of the opinion of the other
jurors or in order to reach a verdict.” The Court notes that
the giving of this supplemental instruction is especially troubling
because it was the third such instruction given and it
varied dramatically from the initial instructions. The omission
of the “honest convictions” language “risks the jurors
believing their responsibilities have changed.” Furthermore
this omission “was amplified by the trial judge telling the
jurors three separate times they took an oath to reach a verdict.”
Finally, “the time line of the jury’s deliberation suggests
that the third supplemental instruction had an effect.”
Only after receiving the third jury instruction with its harsh
language was the jury able to reach a verdict.
U.S. v. Aparco-Centeno
280 F.3d 1084 (6 th Cir. 2/14/02)
Proof of Prior Convictions Will
Remain a “Sentencing Factor,”
Not an Element of the Crime,
Until the U.S. Supreme Court Says Otherwise
THE ADVOCATE Volume 24, No. 3 May 2002
This case is only important for our purposes so far as it
emphasizes that until the U.S. Supreme Court decides to the
contrary, the 6 th Circuit will continue to interpret Apprendi v.
New Jersey, 530 U.S. 466 (2000), as not requiring proof of a
prior conviction beyond a reasonable doubt as an element of
the crime. The U.S. Supreme Court in Apprendi declined to
overrule Almendarez-Torres v. U.S., 523 U.S. 224 (1995), an
earlier case that characterized the determination of a prior
“aggravated felony” as a sentencing factor, so the 6 th Circuit
cannot.
U.S. v. Orlando and Daniels
281 F.3d 586 (6 th Cir. 2/25/02)
This case involves charges of prostitution and money laundering
in connection with the operation of a business called
“Dawn’s Whirlpool and Massage.” The majority of the opinion
deals with various federal law issues that are not of concern
to the state court practitioner. All this summary will
address are the allegations involving jury irregularities.
New Trial Not Required Despite Numerous Allegations of
Improper Influence on Jury and Jury Irregularities
The day after the verdict was returned, one of the jurors,
Kimberly Wade, contacted defendant Orlando and informed
him of various instances of jury misconduct, including the
possibility that the verdict obtained against Orlando was not
unanimous and that some of the jurors read the newspaper
while deliberating. Orlando promptly filed a motion for a
post-verdict hearing. A hearing occurred, and Wade appeared
for questioning. Her testimony focused on nine instances of
extraneous jury influences: (1) newspapers containing articles
about the case that were brought into the jury room; (2)
discussion of a business located next to Dawn’s called “The
Chamber” where sadomasochistic sexual acts occurred; (3)
police statements that were related to the jury by jury
foreperson Joseph Martin, including that several officers told
him that clients at Dawn’s received more than massages; (4)
a TV program called “Sin City” that was watched by several
jurors; (5) a jury administrator’s comment that a verdict was
preferable to a hung jury; (6) relationships between several
jurors and a Dr. Richard Feldman, who was involved in the
investigation of Dawn’s; (7) visits to The Tennessean newspaper
website; (8) foreperson Martin’s statements regarding
the defense trial strategy and mistrial requests made during
times when the jury was not present; and (9) Martin’s comments
regarding evidence not presented at trial, including
names of Dawn’s clients and the fact that Orlando was under
house arrest. A Remmer hearing, Remmer v. U.S., 347 U.S. 227
(1954), occurred where the court heard testimony from all of
the jurors, from 3 alternates, and from Martin’s wife. The
district court denied the motion for a new trial, holding that
Ms. Wade’s “allegations either lack credibility; or that no
prejudice to Defendants resulted from juror exposure to extraneous
information.”
Actual Bias as a Result of Extraneous Jury Influence
Must be Shown to Warrant a New Trial
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