The Fair Courts E-Lert: Wisconsin Creates Special Appeals Process for Foxconn; Suit Challenges Louisiana's Non-Unanimous Jury Law

October 3, 2017



Wisconsin Law Giving Foxconn Bespoke Justice System Faces Scrutiny

Last week, Governor Scott Walker (R--WI) signed a bill that will extend up to $3 billion in tax breaks for Foxconn, the Taiwan-based electronics manufacturer, to build a plant in Wisconsin. The law also creates a special appeals process if Foxconn ends up in state court. Molly Beck of Wisconsin State Journal notes that under the law, if a lower trial court rules against Foxconn, the court’s decision will automatically be stayed if it is appealed. Another provision allows Foxconn to bypass state appeals courts, giving the conservative Wisconsin Supreme Court the opportunity to decide cases related to Foxconn without consideration by the intermediate appeals court.

The Wisconsin Legislative Council suggested that a court could plausibly find that the law violates constitutional separation of powers provisions. However, Johnny Koremenos, spokesman for the Department of Justice, said the “DOJ is confident that the portion of the Foxconn bill related to the courts will pass constitutional muster.” Alicia Bannon and Douglas Keith of the Brennan Center wrote that this “bespoke justice system” is part of a national trend in which “states around the country are tinkering with courts’ structure and processes for political advantage or to support favored interests.”


Petition to Supreme Court Challenges Oregon’s Non-Unanimous Jury Law

Oregon and Louisiana are the only two states that do not require unanimous jury verdicts to convict felony defendants. Ken Daley of The Times-Picayune explains that Dale Lambert, who was convicted in Louisiana of second-degree murder by a 10-2 jury vote, petitioned the U.S. Supreme Court challenging the constitutionality of the state’s non-unanimous jury law. Angela Allen-Bell argues in The Washington Post that this system is a vestige of racism written into law in the late-19th and early 20th centuries, and urges the Supreme Court to hear Lambert’s case. She explains that in 1898, Louisiana adopted a non-unanimous system to strip voting power from recently-emancipated African American jurors. Oregon similarly adopted the non-unanimous system in the 1930s to invalidate minorities’ jury votes: after an infamous case where a Jewish man was convicted of manslaughter rather than murder, a local newspaper blamed the verdict on “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system.”

Critics say these systems still disproportionately harm minority communities today. Shane Dixon Kavanaugh of The Oregonian explains, “Because Oregon is 76 percent white and 2 percent black, according to U.S. Census figures, critics say it's rare to see more than one or two black jurors assigned to any one jury. And if those black jurors dissent from the majority, their votes effectively don't count.” 


Offensive Comments by Trump’s Texas District Court Nominee Draw Criticism

Last week, Chris Massie and Andrew Kaczynski of CNN reported that Trump’s nominee to the U.S. District Court for the Eastern District of Texas, Jeff Mateer, made hateful comments about LGBT individuals in a series of 2015 speeches. In speeches, Mateer has suggested transgender children are evidence of “Satan's plan,” that same-sex marriage would lead to polygamy and bestiality, and he has lamented that states have banned conversion therapy, which he referred to as “Biblical counselors and therapists.”

According to Kristine Phillips of The Washington Post, national groups have called on the Trump administration to withdraw Mateer’s nomination and Sen. Dianne Feinstein (D-Calif.), the top Democrat on the Senate Judiciary Committee, said Mateer’s “ ‘reprehensible’ views about the LGBT community cast doubt on his ability to be fair and impartial.” Mateer is only the most recent of Trump’s nominees to draw criticism – John Bush was confirmed despite significant opposition to his nomination from national LGBT groups, and Damien Schiff and Stephen Schwartz, two other controversial nominees, are still awaiting confirmation.


SCOTUS Issues Stay of Execution After Claims Juror’s Racism Invalidates Death Penalty Verdict

On Tuesday, Georgia was set to execute Keith Tharpe, sentenced to death in 1991 for killing his sister-in-law. His attorneys appealed to the Georgia Supreme Court and the U.S. Supreme Court for a stay of his execution, and sought clemency with the Board of Pardons and Paroles, alleging that a juror’s explicit racism should have invalidated the ruling. According to Dakin Andone of CNN, the juror “in a post-trial interview seven years after Tharpe’s conviction and sentencing, used the n-word and wondered ‘if black people even have souls.’” Tharpe’s lawyers argued the juror’s bias “violates Tharpe’s constitutional rights to a fair trial, guaranteed by the Sixth Amendment.” Further, they alleged the juror engaged in misconduct in the jury selection process. Specifically, the juror concealed “the fact that he knew the victim’s family.”

On Tuesday, the state Parole Board denied Tharpe’s clemency petition, and the Georgia Supreme Court denied Tharpe’s appeal. However, Tuesday night, the Supreme Court issued a stay of his execution, by a 6-3 vote. SCOTUS will decide whether to hear Tharpe’s appeal: if they decide not to hear his appeal, the stay will be lifted.

While Andone notes that “Georgia law states that juror testimony cannot be used to impeach the verdict,” he suggests that recent Supreme Court rulings could aid Tharpe’s case. Most centrally, in Pena-Rodriguez v. Colorado, decided this year, the Supreme Court held that laws such as Georgia’s can be overcome in cases where a juror “makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”