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Presume Bigots on Jury Are Unfair, 9th Says – Update for May 19, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘ALL THEM GAYS AND MEXICANS’ IS NOT QUITE STRUCTURAL ERROR, BUT IT’S NOT HARMLESS, EITHER

Andres Sanchez was on trial for tax fraud. During deliberations, one unenlightened juror told the others, “Can you believe all those people like them gays down in California are coming up here?” Another said, “Yeah. And anyway, the Mexicans, all they want to do is screw us over anyway.”

Andres’s lawyers argued that the comments reflected jury racial bias (not to mention homophobia, which had nothing to do with the trial) and that such bias introduced structural error into the trial.  Structural error is the holy grail of error, a defect so basic that it entitles a defendant to a new trial whether he or she could show the error affected the outcome.

The district court threw the racist juror off the panel before a verdict was reached, and later – after Andres was convicted – denied a new trial on the grounds that he could not show the racist comment affected the jury’s verdict.

Last week, the 9th Circuit reversed.

The Government argued that a simple standard applied by the district court was the correct one, that the verdict should be reversed only if the defendant could show that the dismissed juror’s racial bias affected the verdict. The defense argued that juror bias – even if caught before the jury reached a verdict – was structural error.

The 9th Circuit split the difference. It held that where the bias was caught before a verdict, the error was not structural. However, following the 1954 Supreme Court decision in United States v. Remmer – which requires that a court apply “a heavy presumption of prejudice” where a jury has been tampered with by an outside party – the 9th ruled that Andres should get a new trial.

“Remmer applies when the “jury taint originates from within the jury itself”—including when the alleged taint arises from jurors’ exposure to the partiality of another juror who was removed before deliberations,” the Circuit ruled, rejecting a government attempt to apply a case of attempted juror bribery from United States v. Shapiro. “To the extent the Government argues that Remmer should not apply where the source of juror taint is racial bias, rather than corruption, we disagree. In Shapiro, the juror was “tainted” because he was willing to acquit for improper reasons. The racially biased juror here was similarly willing to convict for improper reasons. If a different standard is required, racial bias should be subject to a more stringent prejudice standard than other forms of juror taint, not a lesser one.’

United States v. Sanchez, Case No. 23-2533, 2026 U.S.App. LEXIS 13615 (9th Cir. May 12, 2026)

United States v. Remmer, 347 U.S. 227 (1954)

United States v. Shapiro, 669 F.2d 593 (9th Cir. 1982)

 

~ Thomas L. Root

SCOTUS Goes For Defendant on ACCA Case – Update for June 27, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“SEPARATE OCCASIONS” ACCA FINDING MUST BE BY JURY

In an unusual 6-3 lineup (with a vigorous dissent by Justice Ketanji Brown Jackson, who is widely assumed to be defendant-friendly), the Supreme Court ruled last week that the 5th and 6th Amendments require that imposing an Armed Career Criminal Act sentence on a convicted felon in possession of a firearm requires a jury, not a judge.

scotus161130The ACCA (18 USC 924(e)) imposes a mandatory 15-year prison term on a defendant convicted of being a felon in possession of a gun or ammo who has previously committed three violent felonies or serious drug offenses on separate occasions. Up to now, judges have made decisions on whether occasions were “separate” by a preponderance of the evidence. However, the Supremes hold that as an element of the offense, whether the felonies occurred on separate occasions, must be found by a jury and that the standard should be “beyond a reasonable doubt.”

circuitsplit220516Up to now, circuits have been split on whether a judge or a jury had to find that the three occasions were different. A Supreme Court opinion two years ago, Wooden v. United States, established standards for deciding when offenses had been committed on “different occasions.” Now, how those standards are to be decided has broken in favor of defendants as well.

A surprising twist in the case was that the government agreed with the defendant that the element should be found by a jury beyond a reasonable doubt:

Petitioner renews his contention that the 6th Amendment requires a jury to find (or a defendant to admit) that predicate offenses were under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v United States, the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

jury151228The decision is yet another chink in the armor of Almendarez-Torres v. United States, which permits a judge instead of a jury to find certain facts related to a defendant’s past offenses. That decision is at odds with Apprendi v New Jersey, which held that the elements of any statute that increased the statutory sentencing range had to be decided by a jury beyond a reasonable doubt.

The Erlinger majority described Almendarez-Torres as “an outlier” and “at best an exceptional departure” from historic practice. 

Erlinger v. United States, Case No 23-370, 2024 U.S. LEXIS 2715 (June 21, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Apprendi v. New Jersey, 530 U.S. 466 (2000)

– Thomas L. Root

‘Bang’ Goes the Jury: Lawyer Ineffective For Not Protesting Judicial Arm-twisting – Update for February 1, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BLOWING UP THE JURY

juryduty180226Simon Brewster was on trial in state court for bank robbery. The jury went out, but reported to the judge a few hours later that it was hopelessly deadlocked 9-3 for conviction. The judge gave the jury the Allen charge, known colloquially as the “dynamite charge,” which pressures the jurors to reach a decision by continued deliberation by appealing, essentially, to their desire not to have wasted their and the court’s time.

The jury remained deadlocked, and the judge gave another Allen charge, two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.

Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be effective. The jury convicted 20 minutes later.

dynamitejury190201Last week, the 11th Circuit granted Simon’s habeas corpus motion, holding that his lawyer was asleep at the switch for not objecting to the court’s strong-arming the jury. The 11th decided that even if Simon could not prove that judge would have granted a mistrial if he had been asked to do so, Simon was prejudiced. “An assessment of the likelihood of a result more favorable to a defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like,” the Circuit said. “It does not matter for prejudice purposes whether the judge at a defendant’s trial would have sustained an objection; what counts is whether the judge would have been required to do so under the applicable law and, if so, whether doing so would have resulted in a reasonable probability of a different result.”

Brewster v. Hetzel, 2019 U.S. App. LEXIS 1931 (11th Cir. Jan. 22)
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– Thomas L. Root