EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 6, 2012

Your Prejudice, I Presume?: 7th Circuit Rejects Indiana's Presumption Against Jury Prejudice

A defendant is on trial for neglecting and murdering his three year-old stepson. After he is convicted, the defendant learns that (a) before his trial, a juror's son informed the juror that the defendant was likely innocent, but that (b) during the trial, the juror found out that his son and several co-inmates changed their mind about the defendant and thought him guilty. The juror then shared this information with at least some other jurors. If the defendant appeals his verdict, is the presumption that he was unfairly prejudiced by this extraneous prejudicial information or that he was not prejudiced by this information. In Indiana, it used to be the latter, but thankfully that is no longer the case given the recent opinion of the Seventh Circuit in Hall v. Zenk, 2012 WL 3711879 (7th Cir. 2012).

In Hall, the facts were as stated above, with Virgil Hall appealing his conviction, arguing

that the State should have had the burden to prove that the extraneous information inserted by [the juror] did not prejudice Hall. The appellate court expressed its discomfort with Indiana law, suggesting that the burden should be on the State to prove that improper, extraneous information that reaches the jury did not cause prejudice to a defendant. The court nonetheless believed itself to be bound by Indiana Supreme Court precedent, which stated that the burden is on the defendant to show that he was actually prejudiced by an intrusion upon the jury before a new trial can be granted. See Griffin v. State, 754 N.E.2d 899, 901 (Ind.2001). Because the appellate court was not permitted to consider any testimony from jurors regarding their perception of the effect of the extraneous information, the court believed that it had a dearth of information upon which to rule, and found against Hall simply because the burden was on him to prove prejudice.

After being unsuccessful in the Indiana state courts, Hall filed a habeas petition under 28 U.S.C. ยง 2254, claiming that the Indiana courts contravened clearly established federal law when they gave Hall the burden of showing that improper communications with a juror in his case resulted in actual prejudice.

In agreeing with Hall, the Seventh Circuit cited to Remmer v. United States, 350 U.S. 377 (1956), and its holding that "[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial...." And while the court noted that subsequent precedent has called into question the broadness of this Remmer presumption, it was still

confident that despite some ambiguity regarding when the Remmer presumption should apply, all reasonable interpretations of Remmer and its progeny would lead to a presumption of prejudice in favor of Hall in his postverdict hearing. Thus, the trial court that oversaw Hall's conviction acted contrary to clearly established federal law under AEDPA



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