Monday, July 5, 2010
Real Life "Community": Judge Denies Mistrial After Juror's Abortionist Comment, Orders Defendant-Doc To Obtain GED
A doctor is charged with the murder of his ex-wife. His first trial ends when the jury deadlocked, with eleven members voting for acquittal and one for conviction. During voir dire of prospective jurors for the doctor's second murder trial, panel members are asked whether they could reach a decision based solely on the evidence. One juror responds, "Every man is entitled to a fair trial, but when [the doctor] left here he became an abortionist." Defense counsel moves for a mistrial, but the trial court denies the motion. The jury finds the doctor guilty of manslaughter, and the trial court sentences him to 20 years in prison and orders him to pay a $10,000 fine and obtain a GED. Did the trial court act correctly? This was the question faced by the Supreme Court of Mississippi in its recent opinion in DeHenre v. State, 2010 WL 2609458 (Miss. 2010), possibly the weirdest case I've ever seen.
The facts in DeHenre were as stated above, with Dr. Malachy DeHenre being the defendant, Dr. Nyasha DeHenre being his ex-wife, and Malachy claiming that Nyasha committed suicide. After the prospective juror made the aforementioned comment and defense counsel moved for a mistrial,
The trial court promptly removed the juror and then addressed the remaining panel members.
THE COURT: ... Can all of you tell me now that whatever this person who obviously was-I don't know what her purpose was. I have no idea. But that was the most outrageous thing that I've seen in a long time in a courtroom. Can all of you tell me that you will put that aside?"
JURORS: Yes, sir.
THE COURT: I don't know whether you people come up here-we have come here today, this is a place where people come for justice. We don't come here to make acquisitions [sic] and make statements. I'm sure that that person, her purpose for doing that was to try to prejudice you in some way. But can all of you tell me at this time that you can put that aside[?]"
JURORS: Yes, sir.
THE COURT: Is there anyone here who can't put that aside?
[DEHENRE]: Your Honor-
Later, during DeHenre's voir-dire examination, panel members indicated once again that they could put the abortionist comment aside and would not let it affect their decision.
After DeHenre was convicted, he appealed, claiming, inter alia, that the trial court should have declared a mistrial. His appeal eventually reached the Supreme Court of Mississippi, which noted:
We are unable to find another case directly on point. But this is not our first case involving misconduct by venire members. In such cases, we generally have affirmed a trial court's refusal to declare a mistrial if prospective jurors gave some indication that an improper statement would not impede their ability to be fair.
The Mississippi Supremes did acknowledge that "[a]bortion is, without question, a highly contentious issue that incites strong passions among many people," a fact that made "the comment here perhaps more troublesome than those found in our prior cases." That said, the court concluded that
Despite the incendiary nature of abortion, we cannot say that the isolated comment with respect to DeHenre being an abortionist was so irreparably prejudicial as to warrant a mistrial....Immediately after this comment was made, the trial court removed that juror and twice asked the members of the jury pool whether they could put the comment aside. They responded affirmatively. DeHenre never requested individual voir dire. Later on, none of the jurors responded negatively when DeHenre's counsel asked the venire members three or four times if they could assure him that the abortionist comment would not weigh into their decision.
One justice wrote a strongly worded dissent, agreeing with the reasoning of the Fifth Circuit in United States v. Davis, 583 F.2d 190 (5th Cir. 1978), which cited with approval the American Bar Association's standards for the conduct of trial. Standard 15-2.4 for the conduct of jury trials reads in part:
(e) Jurors should be examined outside the presence of other jurors on sensitive matters or prior exposure to potentially prejudicial material.
(1) Sensitive matters are those matters which might be potentially embarrassing or intrusive into the juror's private life, feelings or beliefs, or those matters which if discussed in the presence of the jury panel, might prejudice or influence the panel by exposing other potential jurors to improper information.
(2) Examination of the prospective juror with respect to that juror's exposure to potentially prejudicial material should be conducted in accordance with ABA Standards for Criminal Justice relating to Fair Trial and Free Press.
The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised:
(a) If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure should take place outside the presence of other chosen and prospective jurors. An accurate record of this examination should be kept by a court reporter or tape recording whenever possible. The questioning should be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person's attitude toward the trial, not to convince the prospective juror that an inability to cast aside any preconceptions would be a dereliction of duty.
(b) Whenever prospective jurors have been exposed to potentially prejudicial material, the court should consider not only the jurors' subjective self-evaluation of their ability to remain impartial but also the objective nature of the material and the degree of exposure. The court should exercise extreme caution in qualifying a prospective juror who has either been exposed to highly prejudicial material or retained a recollection of any prejudicial material.
Accordingly, the dissenting justice found that the procedure used by the trial court was constitutionally deficient and would have reversed and remanded for a new trial. I definitely agree with the dissenting justice given the facts of the case.
But what about the GED? In a footnote in the majority opinion, the court noted that
A general educational development degree (GED) is the equivalent of a high school diploma. DeHenre is a physician, and the record provides no insight as to why the trial judge thought DeHenre needed a GED.
Unfortunately, this is the only portion of the opinion where the Mississippi Supremes mention the fact that the trial court sentenced him to obtain a GED, so we don't know what happened. Was it a situation like on NBC's "Community," in which attorney Jeff Winger was ordered to go to community college after the State Bar deemed his college degree invalid? Did Malachy use poor grammar during trial, leading the judge to think he needed to brush up on his basics? Or is the sentence evidence that the juror's comment about Malachy had a prejudicial effect on the judge as well as the jurors? Barring a habeas petition, we may never know.