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Virgil v. Dretke,
No. 03-21129 (5th Cir., April 2006): IAC/biased juror winner! Another AEDPA winner (non-capital) on an IAC claim where two jurors stated that they could not be fair and impartial yet ended up on the jury(!) Good analysis of biased juror issue.
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Wesley Deion Jones v. State,
Wesley Deion Jones v. State, 2006 OK CR 17 (Okl.Cr., April 24, 2006): Death penalty winner! Solid (and somewhat rare) case in which a juror clearly favored death over the other punishment options and should have been excused for cause. Normally, this can be shown in a lot of cases. The trick is to show prejudice in order to get any relief and Jones does so in this case(!) In order to establish prejudice the accused must show that he was forced to keep an unacceptable juror. The trick to that is to show that the juror was unacceptable and that trial counsel requested an extra peremptory challenge but was denied. Sharp lawyering here by both trial counsel and appellate counsel. Jones gets a crack at re-sentencing. NOTE: the Court stopped short of requiring individual sequestered voir dire but did add this in the opinion, "However, we urge trial courts to use a juror questionnaire and conduct individual sequestered voir dire in capital cases." NOTE: the devil is often in the details and footnote number 14 deserves a look-see as it overrules prior cases on the proper standard for determining prejudice in juror voir dire cases in the capital context.
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United States v. Rosenthal,
No. 03-10307 (9th Cir., April 24, 2006): Juror misconduct. Winner on a claim of juror misconduct when a deliberating juror called up an attorney-friend and discussed the case. Powerful opinion because the attorney told the juror really nothing more than that she had to follow the instructions of the court. Good analysis of the divergent legal standards applicable to cases involving ex parte contact with jurors and extraneous information acquired by jurors.
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Justin Lynn Hammons v. State,
No. F-2004-1277 (Okl.Cr., June 29, 2006) (unpublished): Jurors: Hammons was mauled in Tulsa County on five counts of various drug charges, including a trafficking for which he received 75 years. Count 3 was a conviction for Maintaining a Dwelling where CDS are kept and he received 8 years for that. During deliberations, the jury became deadlocked on Count 3. However, instead of calling the entire jury into court, the trial judge apparently called only the foreman into court and instructed him concerning the unanimity requirement and directed him to so instruct the other jurors. Held: this was error with presumed prejudice and Count 3 is reversed. Trial Judge: P. Thomas Thornbrugh, Tulsa County.
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United States v. McConnel,
No. 03-6345 (10th Cir., September 25, 2006) (Published): Jurors; Jury Instructions--Deliberate Ignorance: Former Oklahoma attorney Joseph Edward McConnel was convicted by a jury of four counts arising out of firearm sales. McConnel's license was suspended so he apparently became self-employed as a private investigator. He associated with Oklahoma City attorney Charles Holdstock. Holdstock represented a member of a motorcycle gang who had a felony conviction and who eventually set up McConnel by arranging guns and ammo sales. McConnel raised several claims in this appeal including: 1) juror dishonesty when the foreman failed to divulge that he had been charged with several felonies; 2) error in giving a jury instruction on deliberate ignorance; 3) error in impeaching McConnel with two misdemeanor convictions; and 4) Booker error at sentencing. The panel found error in giving the deliberate ignorance instruction under the facts but no plain error requiring relief; and also found Booker error but held that the error was harmless.
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Wesley Wayne Dodson v. State,
No. F-2005-97 (Okl.Cr., October 4, 2006) (unpublished): Jurors; Vouching: Dodson was tried by jury in Garfield County, convicted of two counts of Rape in the First Degree (of his two step-sons), and sentenced to 50 year terms to be served consecutively. REVERSED AND REMANDED for new trial on the basis of: 1) trial court's failure to excuse a biased juror for cause (the juror had a prior experience with sexual assault and stated that, although she could be fair in determining guilt/innocence, if she was convinced that Dodson was guilty he "would get no mercy from me"); and 2) improper vouching by the police officer (he testified that in his opinion the minor complaining witnesses were not untruthful). Trial judge: Hon. John Michael (retired). NOTE: this case is a good example of the importance during voir dire of making sure that the juror can be fair in the sentencing process as well as the guilt/innocence determination.
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Kopsho v. State,
No. SC05-763 (Fla., May 24, 2007): Jurors: Kopsho was tried by jury in Florida and convicted of Armed Kidnapping and First Degree Murder of his wife. The Florida Supreme Court reversed and remanded for a new trial because of the trial court's refusal to grant a challenge for cause to a potential juror based upon the views of the juror regarding a defendant's right to not testify at trial (the venireman expected the defendant to take the stand because he "would like to hear his side" and expressed uncertainty if he could be fair if the defendant did not do so). Kopsho was able to show prejudice because he used a peremptory challenge to strike the juror, then ran out of peremptory challenges, and requested another peremptory to challenge a veniremen who actually sat on the jury. This is the KEY to winning these issues on appeal and making a record. You will basically have to show that an unacceptable juror sat on the actual jury and that you used all your peremptory challenges and requested additional challenges and were denied.
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Eizember v. State,
2007 OK CR 31 (August 10, 2007): Jurors: This is a correction order to the opinion in a recent capital case that was affirmed. The correction order simply added the concurring opinion of Judge Lewis. The majority opinion stated that the actual voir dire answers of a juror control over statements made previously by the juror in a questionnaire. Judge Lewis disagreed with this approach, opining that in a future case it may be conceivable that the answers on the questionnaire could "trump" the voir dire and result in juror disqualification (although Eizember did not present such a case).
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United States v. Wright,
No. 06-3063 (10th Cir., November 6, 2007) (Published): 1) Conspiracy; 2) Discovery; and 3) Jurors: Wright went to jury trial on a charge of Conspiracy to Distribute and to Possess with Intent to Distribute more than 50 Grams of Cocaine and was sentenced to 210 months. Wright and others were basically running a crack house and the cops conducted some controlled buys and obtained a search warrant for the house. Wright challenged the sufficiency of the evidence to prove the conspiracy. The panel AFFIRMED, penning an opinion with a clarification of the "buyer-seller relationship" principle that applies to large conspiracies (although it did not help Wright in this case). There is also a decent discussion about the production of the notes of the case agent after she referred to them on the stand during trial. The panel found no Jencks Act violation and no Brady violation. Finally, after the trial was over, the jury foreman appeared to be very upset and approached defense counsel in the hallway. The trial judge saw this and squelched any contact pursuant to a local rule prohibiting counsel from contacting jurors without court approval. The trial judge met with the juror in chambers and subsequent denied the defense motion to contact the juror on the basis that it would not lead to any evidence admissible under Rule 606(b). The spineless panel held this was not an abuse of discretion, noting somewhat cattily that defense counsel did not request a record to be made of the judge's interview.
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Kendall DeWayne Carr v. State,
No. F-2006-1208 (Okl.Cr., September 23, 2008) (unpublished): Jurors: Carr was tried by jury in Cleveland County before the Hon. Lori M. Walkley on a charge of Rape in the First Degree (AFCF x 2) and sentenced to straight Life. In this appeal he alleged he was denied Due Process when the trial court denied his challenge for cause during voir dire which forced him to use one of his limited peremptory challenges to remove a biased veniremember and ultimately forced him to keep an unsuitable juror. REVERSED AND REMANDED FOR NEW TRIAL. The veniremember was a POLICE OFFICER who, during voir dire, said he would give more credence to the testimony of a fellow officer than to the testimony of another witness. The Court found that Judge Walkley abused her discretion in refusing the request of the defense to remove the police officer as a prospective juror. NOTE: This seems so completely obvious it is difficult to understand what the judge was thinking other than to stack the jury in favor of the State. NOTE: In a specially concurring opinion, Judge C. Johnson pointed out our state statutes do not prohibit police officers from serving on juries; rather, only those officers having custody of prisoners are prohibited pursuant to 38 O.S. sec. 28. HOWEVER, the Legislature and the Governor amended the statute effective November 1, 2008, to allow jailers or law enforcement officers to serve on non-criminal cases only.
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