EvidenceProf Blog

Litigating With The Sopranos, Take 3: Supreme Court Of New Jersey Creates Forfeiture By Wrongdoing Exception

I have written two previous posts (here and here) about State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), an opinion by the Superior Court of New Jersey, Appellate Division, in which the court refused to graft a forfeiture by wrongdoing exception onto the New Jersey Rules of Evidence because "such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion...." In my post on Byrd back in January, I noted that "[w]e should have the response of the Supreme Court of New Jersey shortly." Well, on Thursday we got it. And the New Jersey Supremes created such an exception, pending a New Jersey Senate and General Assembly joint resolution signed by the Governor.

In State v. Byrd, 2009 WL 856631 (N.J. 2009), the Supreme Court of New Jersey began by noting that in 1997, the Federal Rules of Evidence codified the common law doctrine of forfeiture by wrongdoing with Federal Rule of Evidence 804(b)(6), which provides an exception to the rule against hearsay for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 

The court noted that Rule 804(b)(6) also "extinguishes confrontation claims on essentially equitable grounds." It also noted that several states have adopted state counterparts to Federal Rule of Evidence 804(b)(6) and that "[n]o court that has considered the forfeiture-by-wrongdoing doctrine has rejected it." The New Jersey Supremes found that the forfeiture-by-wrongdoing doctrine is founded on three significant public policy rationales:

The first is to remove any profit that a defendant might receive from his own wrongdoing.

The second rationale is to provide a strong deterrent against intimidation and violence directed at witnesses by defendants attempting to game the judicial system.

Last, the forfeiture-by-wrongdoing doctrine "furthers the truth-seeking function of the adversary process, allowing fact finders access to valuable evidence no longer available through live testimony."  

Then, after acknowledging that "[w]itness intimidation is no stranger to New Jersey," the court decided to enact a forfeiture by wrongdoing exception to the rule against hearsay, but as noted by the lower court, it had to comply with N.J.S.A. 2A:84A-38 and -39.  What that means is, as noted above, the New Jersey Senate and General Assembly need to pass a joint resolution signed by the Governor for the exception created in State v. Byrd to take effect.

So, how will that exception work? Well, you can read the full explanation in the opinion, but here is a condensed version:

When the State intends to introduce a witness's statement through the forfeiture-by-wrongdoing exception to the hearsay rule, it must make known its intention as soon as reasonably practicable. Ordinarily, the State should advise defense counsel and the court as soon as it becomes aware that the defendant's wrongful conduct has made the witness unavailable and that it intends to offer the witness's out-of-court statement into evidence. The State must reveal the identity of the witness and the particulars of the statement that will be offered into evidence.

Next, the trial court must conduct an N.J.R.E. 104(a) hearing, outside the presence of the jury, to determine whether the witness's out-of-court statement should be admitted into evidence because the defendant engaged in wrongful conduct, making the witness unavailable.

The hearing must be conducted in the presence of counsel and defendant, and the defendant can only be excluded from the hearing for extraordinary reasons that must be articulated on the record. 

In those cases in which the witness is available to testify but refuses to do so, due to alleged threats or fear induced by the defendant, the court ordinarily should advise the witness of his obligation to testify and that if he refuses to do so, he will be held in contempt. A witness must know that there will be consequences if a court order is disobeyed. If the witness continues to refuse to testify after the threat of contempt, he will be deemed an unavailable witness. A witness is also unavailable if the witness cannot be located, has been rendered unable to testify because of the infliction of physical or psychological injuries, or has been killed as a result of the wrongful conduct of the defendant. 

At the hearing, the State will bear the burden of proving by a preponderance of the evidence that defendant engaged, directly or indirectly, in wrongdoing that was intended to, and did, procure the witness's unavailability.  In other words, the State must demonstrate that the defendant by his wrongful conduct, directly or indirectly, caused the witness's unavailability-that is, caused the witness's physical absence or the witness's refusal or inability to testify.

Before admitting an out-of-court statement of a witness under the forfeiture-by-wrongdoing rule, the court must determine that the statement bears some indicia of reliability.  

-CM

Confrontation Invitation: Court Of Appeals Of Ohio Finds Invited Error In Response To Confrontation Clause Appeal

The recent opinion of the Court of Appeals of Ohio, Ninth District in State v. Moorer, 2009 WL 818945 (Ohio App. 9 Dist. 2009), is an interesting opinion that involves statements falling under both Davis v. Washington, 547 U.S. 813 (2004),  and Hammon v. Indiana.  The problem for Moorer, however, was that while the admission of statements falling under Hammon v. Indiana ordinarily would have violated his rights under the Confrontation Clause, the Court of Appeals instead found that they fell under the invited error doctrine.  

In  Moorer, the facts adduced at trial established that Lawrence H. Moorer came home drunk from a funeral with lipstick on his collar. When his girlfriend, Carolyn Washington, got angry and tried to leave, Moorer attacked her. Washington eventually escaped their apartment and went across the street to a neighbor's to call 911. The Grand Jury indicted Mr. Moorer for kidnapping and domestic violence, and a jury convicted him of domestic violence.

One of Moorer's grounds for appeal was that the admission of Washington's 911 call violated his rights under the Confrontation Clause of the Sixth Amendment.  The Court of Appeals disagreed, noting the following about the 911 call:

Regarding the 911 call in this case, the dispatcher first asked about the location of the emergency. Ms. Washington answered "1243 Roslyn." The dispatcher then asked what was the emergency, and Ms. Washington answered that her "boyfriend is violent right now." She said that Mr. Moorer was choking her and punching her in her pacemaker, that he would not let her out of the house, and that "he is fighting with the neighbor right now." When the dispatcher asked if he had done "all that to [her]," Ms. Washington responded with a distressed "yes." The dispatcher then asked Ms. Washington to identify herself and her boyfriend, as well as to describe what her boyfriend was wearing.  

Based upon these facts, the Court of Appeals was able to rely upon the Supreme Court's opinion in Davis v. Washington, 547 U.S. 813 (2004), which found that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."  Thus, because Washington's statements were non-testimonial, they could not be violative of the Confrontation Clause pursuant to Crawford v. Washington, 541 U.S. 36 (2004). 

However, as in Hammon v. Indiana, Washington also made statements to the responding officers after the emergency was over.  The problem for Moorer, however, was that testimony regarding these statements was rendered in response to questions by his own attorney, meaning that they were not violative of the Confrontation Clause based upon the invited error doctrine. In other words, because Moorer's attorney invited the trial court to commit Constitutional error by asking the subject questions, Moorer could not claim on appeal that his rights under the Confrontation Clause were violated. 

-CM

How 'Bout Them Cowboys: Dallas Cowboys Win Summary Judgment In Trademark Action Against America's Team Property, Inc.

Who is America's Team? Well, I did a Google search, and the first thing that came up was the Wikipedia entry for America's Team, which starts with the sentence, "The term America's Team is a popular nickname in American sports that most often refers the Dallas Cowboys of the National Football League." The second thing that comes up is the official website of the Dallas Cowboys.  And now, unsurpisingly, a judge in the United States District Court for the Northern District of Texas has (partially) agreed.

In Dallas Cowboys Football Club, Ltd. v. America's Team Property, Inc., 2009 WL 819394 (N.D. Tex. 2009), a Minnesota company called America's Team Properties owned rights to a 1990 registered trademark covering the use of the phrase "America's Team" on clothing. In 1999, the company began nudging the Cowboys to buy the registered mark. It ran an ad in USA Today, claiming it planned to hold an auction to sell the mark, with bids beginning at $500,000. It later contacted the Cowboys in 2003, offering to sell the mark for $400,000 and began sending cease and desist letters to Cowboys licensees. The Cowboys and NFL Properties, LLC responded, not by buying the mark, but by bringing an action alleging that the defendant's actions infringed their common law rights in the trademark and their state trademark registration.

Specifically,

[t]he Cowboys assert[ed] the team has used "America's Team" as a service mark and trademark since 1979. The term was first used in commerce that year as the title of the Dallas Cowboys' 1978 season highlight film. The term was coined by Bob Ryan, an executive at NFL Films, working with Doug Todd, the Cowboys' public relations director. The name stuck, and the Cowboys actively encouraged its use to promote the team. The Cowboys allow sponsors, promoters, and charities to use the term in promotions.  

Thus, the plaintiffs claimed that “America's Team” was a protectable mark and that the team had priority over the defendant, "a bad-faith infringer whose increasingly aggressive and harassing activities pose a significant threat to the business concerns of the Dallas Cowboys." Of course, in order to win, the plaintiffs had to show a likelihood of confusion between their mark and the defendant's mark, and the best evidence of likelihood of confusion is provided by evidence of actual confusion."  And the plaintiffs had such evidence. They presented the court with

a survey by Gabriel Gelb...demonstrating that 19 percent of respondents nationwide believed that the Cowboys produced Defendant's "America's Team" cap or that Defendant needed the Cowboys' permission or approval to make the cap. In the Dallas area, that number jumped to 39 percent of respondents, reflecting the football team's strength in its home market. These percentages [we]re within the range accepted by courts-generally 15 percent-in assessing likelihood of confusion.  

The defendant, however, had a competing survey by James Berger, which "found only 6.8 percent of respondents associated “America's Team” with the Dallas Cowboys and determined a net likelihood of confusion of less than 1 percent." Each side objected to the other's expert report as based upon unreliable or inadmissible information, but the court overruled each objection finding that "[t]o show actual confusion, a plaintiff may rely on anecdotal instances of consumer confusion or consumer surveys." Both surveys were thus admissible under Federal Rule of Evidence 703, which states in relevant part that:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

The problem for both parties was that the court found the survey data to be "conflicting, inconclusive and ultimately unilluminating." Ouch.  But the court was still able to grant the plaintiffs' motion for summary judgment because of, inter alia, the "strong inference...that ATP [wa]s effectively squatting, akin to so-called 'cybersquatters' who register a domain name on the World Wide Web in the hope of selling it at an inflated price to a legitimate business by the same name."  

Perhaps in an attempt to avoid the appearance that he is such a big Cowboys homer that he even thinks that Wade Phillips is a good coach, presiding judge Ed Kinkeade noted in dicta:

To be clear, the Court does not hold that the Dallas Cowboys are "America's Team" or that the organization necessarily has any more claim to the title than the Pittsburgh Steelers, Green Bay Packers, New York Yankees, Atlanta Braves, Notre Dame Fighting Irish, 1980 Olympic hockey team, or any other broadly popular team. The Court does find, however, that the Dallas Cowboys have trademark priority over Defendant with respect to the term "America's Team."  

-CM

April Fool's: California Court Of Appeal Finds Harmless Error In Horribly Misguided April Fool's Day Appeal

Last December, I posted an entry about a horribly misguided opinion of the Court of Appeals of Texas.  In that opinion, the court found that the erroneous admission of the defendant's confession was harmless error because the alleged victim identified him twice.  There was no forensic evidence linking the defendant to the crime, no eyewitnesses, no other confessions by the defendant.  Instead, the Court of Appeals reached the indefensible conclusion that the defendant's confession was no more damaging that the victim's identifications.  This was probably the worst harmless error ruling I had ever seen until I read the recent opinion of the California Court of Appeal, First District in People v. Cooper, 2009 WL 792355 (Cal.App. 1 Dist. 2009).  In my mind, Cooper almost seems like an April Fool's Day joke of circular logic. 

In Cooper, according to San Francisco Police Officer Shaughn Ryan, on April 1, 2007, Tyrone Cooper made eye contact with him and asked if he wanted some "cream," which is slang for cocaine.  Ryan said that he did, and Cooper pulled out a Tic Taccontainer with an off-white rock substance inside that Ryan believed, based on his training and experience, to be crack cocaine.  After the two negotiated a price of $10, Ryan told Cooper that he was a police officer and that defendant was under arrest.  Cooper then

took a "combative stance," bending his knees and bringing his fists in front of his body, and stated, "'Oh, no, I'm not going to jail today.'" Ryan stated again that he was a police officer, that [Cooper] was under arrest, and that Ryan did not want to fight with him. Ryan radioed for assistance and also began to pull his police badge out from under his shirt to reinforce the fact that he was really a police officer. [Cooper] started to run. He took about two or three steps before Ryan tackled him to the ground. Ryan testified that he tackled [Cooper] "by putting my arms around him and, hmm, using my momentum to trip him up and force him to the ground kind of like a football tackle." They "rolled around on the ground for a little bit," and Ryan again told [Cooper] that he was a police officer and to stop resisting. Another officer testified that when he came to assist Ryan, Ryan "was more or less on top of" [Cooper], and they were "in a struggle, and not a fist fight struggle, but more or less as Mr. Cooper was trying to, ah, kind of push himself up trying to get away from Officer Ryan's grasps." After two other officers arrived and [Cooper] was handcuffed, [Cooper] stopped struggling. Ryan noticed that [Cooper] had a big gash on the top of his forehead, and that [Cooper] "was bleeding pretty well."[Cooper] was taken to the hospital, where he received stitches.

Cooper's version of events differed.  For insrance, "[h]e admitted that he had previously carried crack cocaine in the Tic Taccontainer, but [claimed] that he smoked it all and refilled the container with "bunk," or "fake dope," that someone had given to him as an April Fool's Day joke."  This claim, however, was not very compelling because "[s]ubsequent tests of the suspected narcotics revealed it was cocaine base totaling .13 grams, which Officer Ryan testified was a usable amount of cocaine base."

More compelling was Cooper's account of his arrest.  According to Cooper, before Ryan identified himself as a police officer, Ryan

grabbed him by the throat and held his neck. [Cooper] at first did not believe that Ryan was a police officer and so "grabbed him back" to prevent Ryan from choking him. He then realized that Ryan could be a police officer, and he reached into his pocket and threw the Tic Taccontainer on the ground. According to [Cooper], Ryan "kept on pushing [him]," then pushed him to the ground and "busted [his] head." [Cooper] claimed he did not try to run, and that he was just trying to loosen Ryan's grip on his neck. He testified, "I mean, when he grabbed me a little tight, when he first grabbed me, I didn't think he was a police, but when he started grabbing me, he put a lot of pressure on there and then I said, yes, this must be the police here."

Nonetheless, the trial court refused to instruct the jury on the effect of Officer Ryan's use of allegedly excessive force when he arrested Cooper, and Cooper was subsequently convicted of offering to sell cocaine base, possession for sale of cocaine base, and resisting, obstructing, or delaying a peace officer.  Cooper thereafter appealed, claiming, inter alia, that the failure to instruct the  jury on the effect of Officer Ryan's use of allegedly excessive force was reversible error because the lawfulness of an arrest is an essential element of the crime of resisting, obstructing, or delaying a peace officer, and the prosecution must prove beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.

The Court of Appeals agreed that the failure to instruct was error, noting that "although the evidence regarding Officer Ryan's use of allegedly excessive force was weak, it was sufficient to justify a jury instruction on the issue."  The court, however, found that this error was harmless because

[a]lthough [Cooper] testified that Ryan grabbed his throat..., jurors clearly rejected this testimony. Had jurors accepted [Cooper]'s version of events, they would have acquitted him of resisting a peace officer, because he also testified that he did not run from Ryan or resist arrest (other than raising his hands to his throat to prevent Ryan from choking him). Any error in refusing the requested instructions was harmless beyond a reasonable doubt.

What?  Cooper's whole point was that the jurors might have accepted his version of events but didn't undestand the consequence of finding that Officer Ryan used excessive force because they were not given a jury instruction.  To focus on what the jury found without the jury instruction completely ignores the point of Cooper's appeal.  The court's opinion would be akin to a court saying that a trial court committed harmless error by failing to instruct the jury on self-defense because the jurors clearly rejected the defendant's self-defense testimony.  In other words, its is circular logic of the worst kind.

-CM

Dismissed With Prejudice, Take 2: Recent Maryland Opinion Reveals That The Terrpain State Precludes Jury Impeachment Based Upon Allegations Of Juror Racism

In my forthcoming article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, I cite to a number of state court opinions precluding jurors from impeaching their verdicts through allegations of juror racial prejudice during deliberations.  In the article, however, I did not cite to any opinions from Maryland, but the recent opinion of the Court of Special Appeals of Maryland in Dorsey v. State, 2009 WL 809451 (Md.App. 2009) reveals that the Terrapin State precludes jury impeachment on these grounds as well.

Dorsey itself actually did not involve post-trial allegations of juror racial bias.  Instead, Theodore Doresy appealed from his second degree arson conviction, and the Court of Special Appeals of Maryland found that jurors could not impeach their verdict through testimony that jurors took his decision not to testify as evidence of his guilt pursuant to Maryland Rule of Evidence 5-606(b)(1), which states that:

In any inquiry into the validity of a verdict, a sworn juror may not testify as to (A) any matter or statement occurring during the course of the jury's deliberations, (B) the effect of anything upon that or any other sworn juror's mind or emotions as influencing the sworn juror to assent or dissent from the verdict, or (C) the sworn juror's mental processes in connection with the verdict. 

In reaching this conclusion, however, the court relied in part on the opinion of the Court of Appeals of Maryland in Williams v. State, 102 A.2d 714 (Md. 1954). In that case, an African-American woman appealed from her assault and battery conviction and sought to introduce the affidavit of a juror, who averred

"This was an all white jury. From the beginning of the discussion in the jury room it was the race of the defendant, not the facts, which were weighed by the majority of the jurors. They freely discussed the race of this girl and said that where colored people are concerned the police have got to be right. Bandied back and forth between the jurors were the statements that these colored people are smart alecs, especially the educated ones; that they overassert their rights; that we must teach them a lesson. Four of the jurors, including myself, were for complete acquittal at the first of the discussion. A fifth juror was undecided. The other jurors kept hammering at us. One of the jurywomen exclaimed to me, 'You're taking that colored girl's word against the police. You must be in trouble with the police!' I told her I had never been in trouble with the police, that I had many friends who were police officers, but I felt this girl was innocent. The last half hour, I held out alone. I finally threw in the towel when some of the jurors accused me of being a 'nigger-lover.'"

The Court of Appeals in Williams deemed this affidavit admissible, concluding that "[w]e have been referred to no case, and careful independent research has disclosed none, where a verdict was set aside on appeal in any jurisdiction, because of fallacious, unfair or biased arguments advanced by jurors to one another in their deliberations." In so folding, the Court of Appeals remarked that it reached this conclusion even though the "claim that a litigant has been denied justice on account of his or her race ... rais[es] an issue of utmost gravity." 

So, we can add Maryland to the list of states that preclude jury impeachment based upon allegations of juror racial prejudice, and I think that this last sentence from Williams goes a long way toward explaining why the application of such a rule violates the right to present a defense.

-CM

Eleven Angry Men: Northern District Of Illinois Rejects Section 2255 Petition Alleging Missing Juror During Deliberations

The recent opinion of the United States District Court for the Nothern District of Illinois in United States v. Webster, 2009 WL 779806 (N.D. Ill. 2009), contains one of the more interesting jury impeachment questions that I have ever seen:  What happens when twelve angry men becomes eleven angry men?  For the Northern District of Illinois, the answer was "nothing," at least when the petitioner seeks relief based upon alleged juror misconduct.

In Webster, Jesse Webster was convicted of conspiracy with intent to distribute kilogram quantities of cocaine, possession with intent to distribute fifteen kilograms of cocaine, attempted possession with intent to distribute twenty-five kilograms of cocaine, and two counts of false statements on his 1992 and 1993 tax returns.  After he unsuccessfully appealed, he filed for Section 2255relief. In his Section 2255 petition, Webster alleged, inter alia, juror misconduct in that:

the docket sheet of the criminal case indicated that on November 29, 1995 the records showed that one juror was absent. A docket entry stated that the jury deliberated that day. The next day, the absent juror appeared and the twelve jurors deliberated and around noon indicated that it had reached the verdict that is the foundation for the judgment in this case.

If the docket sheet were correct, the deliberations were incorrect because the jury should not have deliberated with only eleven jurors present.  But the problem for Webster was that the bailiff serving on his trial had passed away was thus unable to testify whether the jury deliberated with only eleven jurors present and, if so, why he failed to instruct the court of this fact and have the jurors sent home.  Recognizing the potential for injustice, and notwithstanding Federal Rule of Evidence 606(b), the anti-jury impeachment rule, the judge allowed for interrogation of the jurors regarding deliberations, but the problem was that they "had incomplete memories of the deliberations."

There was understandable confusion about which days the jury sat and about who sat. Seven jurors could not recall a day when one of their members was absent. Three did recall such a day but remembered, incorrectly, that an alternate juror was seated. Another juror did recall that a male juror did not appear during trial (not during deliberations) but did come back the next day. None of the jurors recalled a day in which they were sent home early, an event which would have occurred if the normal practice regarding such events in this courthouse had been followed. None of the jurors recalled deliberating with less than all of the jurors. 

But the larger problem for Webster was that Webster's Section 2255 petition alleged juror misconduct when in fact he was alleging bailiff misconduct because it was the bailiff who should have stepped in and stopped and prompted the judge to stop deliberations.  The Northern District of Illinoisthus found that Webster's new "bailiff misconduct" claim was untimely and not cognizable because it was not of constitutional dimensions (the court also rejected Webster's other attempts to attack his convictions).  This seems like a troubling result to me, but it seems that the trouble came from the lack of reliable evidence rather then the court, which did not rigidly apply the rules of evidence.

-CM

You're Gonna Get Out In Forever And A Day: Kentucky District Court Precludes Jury Impeachment In Capital Habeas Appeal

Last November, I posted an entry about United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008), in which death-sentenced David Jackson moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary. The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction.  The recent opinion of the United States District Court for the Wester District of Kentucky in Matthews v Simpson, 2009 WL 722073 (W.D. Ky. 2009), is cut from a similar cloth.

In Matthews, David Matthews brought a petition for writ of habeas corpus after he had unsuccessfully appealed from his convictions for murder and burglary and death sentence in the Kentucky state court system. One of the grounds for Matthews' challenge to his death sentence was that jurors considered the possibility that he could be paroled in deciding upon his sentence, which was prohibited under Kentucky law at the time of his trial.  In support of his petition, Matthews submitted, inter alia, the affidavits of jurors David Eugene Durham and Mary Jo Fisher Raichart.  Durham's affidavit stated:

1. I was a juror in the 1981 capital trial of David Eugene Matthews in Louisville, Kentucky.

2. While we as a jury were deliberating on the kind and type of sentence to recommend for Mr. Matthews, one of the jurors said that they thought that no matter what kind of sentence we gave him, that he would be eligible for parole within a short period of time after being sentenced.

3. We all felt that this had a great impact upon our sentencing decision, therefore, we asked the judge how we were to consider parole in the sentencing choices we had to make.

4. The judge told us he could not answer our questions. However, he never told us not to consider parole in deciding upon an appropriate sentence.

5. Because we believed that Mr. Matthews might be eligible for parole in a relatively short period of time if we handed down a sentence of less than death, I voted for the death penalty so that Mr. Matthews would have to stay in prison.

Similarly, Fisher Raichart's affidavit stated:

1. I was a juror in the 1982 capital trial of David Eugene Matthews in Louisville, Kentucky.

2. My name at the time of the trial was Mary Jo Fisher. My name is now Mary Jo Fisher Raichart. The jury was concerned about the possibility of parole within a short time.

3. We all felt that this had a great impact upon our sentencing decision, therefore, we asked the judge how we were to consider parole in the sentencing choices we had to make.

4. The judge told us he could not answer our questions. He never told us not to consider parole in deciding upon an appropriate sentence.

5. Because we believed that Mr. Matthews might be eligible for parole in a relatively short period of time if we handed down a sentence of less than death, I voted for the death penalty so that Mr. Matthews would have to stay in prison.  

The problem for Matthews was Federal Rule of Evidence 606(b), which states that:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Using this Rule, the court found that Matthews did not present it 

with any evidence that the jury considered some external piece of information that was not admitted at trial in reaching its sentencing verdict. If that were the case, then the court might be able to consider it. Rather, Matthews...presented the Court with only affidavits from two jurors stating that the possibility of parole influenced their verdict....[S]uch evidence is undisputably intrinsic in nature, and therefore, inadmissible under Rule 606(b).

Alternatively, the court found that it could not award habeas relief to Matthews because "[e]ven if the court were to consider this evidence, the fact that the jury considered parole in violation of Kentucky law does not establish a violation of federal law."

Undoubtedly, this was the correct decision under current law, but I still remain uncomfortable applying the anti-jury impeachment rule when it is a person's life, and not merely his liberty, at stake.

-CM