EvidenceProf Blog

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

Saturday, July 11, 2009

I Read The News Today: 10th Circuit Denies Habeas Despite Juror Misconduct In Death Penalty Appeal

A defendant is convicted of murder and sentenced to death. It turns out, however, that after the jury found the defendant guilty but before they decided to impose the death penalty, a juror spoke with a released alternate juror, who told her that he thought that the jury had done the right thing and that he had read newspaper articled that supported the jury's verdict. The defendant is thus entitled to a new penalty phase of trial, right? Well, actually he isn't, at least according to the recent opinion of the Tenth Circuit in Matthews v. Workman, 2009 1927051 (10th Cir. 2009). 

In Workman, the defendant was Jeffrey Matthews, accused of murdering his great-uncle

After jurors found Mr. Matthews guilty..., the court released them for the weekend with the usual admonition not to discuss the case with anyone. The penalty phase of the trial was set to begin the following Monday. Despite the court's instruction,...Juror # 2 called a discharged alternate juror, James DeHaven. Before being dismissed from jury service, Mr. DeHaven had given Juror # 2 a slip of paper with his phone number on it and asked her to call him to tell him the verdict. During their approximately 15 minute phone conversation, Juror # 2 told Mr. DeHaven that the jury had found Mr. Matthews guilty and indicated how long the jury deliberated. Mr. DeHaven replied that he thought the jury had done the right thing. Mr. DeHaven added that he had read newspaper articles that supported the jury's verdict, and assured Juror # 2 that she would understand what he meant once she was free to read the articles.

The jury eventually imposed the death penalty, and, after Matthews exhausted his appeals in the Oklahoma state court system, he filed a habeas petition in federal district court. After that court denied his petition, he appealed to the Tenth Circuit, which affirmed. That court noted that it was not precluded from hearing Matthews' allegation under Federal Rule of Evidence 606(b) because Juror #2's contact with the discharged alternate juror constituted an improper outside influence and/or extraneous prejucial information. Nonetheless, the court found that it could not afford relief to Matthews because 

On the record before us, we cannot conclude that Juror # 2's conversation with Mr. DeHaven, however inappropriate, substantially influenced the jury's sentence of death. This is not a case in which the question of harm or harmlessness is evenly balanced. Mr. Matthews argues that the information Mr. DeHaven communicated to Juror # 2 could have affected the verdict in the penalty stage by removing any residual doubt Juror # 2 harbored about Mr. Matthews's guilt, and thereby making her more likely to approve a death sentence. The difficulty with this suggestion is that the defense itself made no appeal to residual doubt in the penalty phase; in fact, defense counsel expressly disclaimed any such argument and emphasized that the defense respected the jury's verdict on the question of guilt. As well, it appears from the record that no specific details of the newspaper article were communicated to Juror # 2; that no other juror was even exposed to Mr. DeHaven's comment that the newspaper article supported the guilty verdict; and that the jury did not discuss or consider the extraneous information. We, thus, have no record evidence that would permit us to infer harm flowing from Juror # 2's conversation, and we reach this conclusion even without resort to the fact that Juror # 2 testified at the State evidentiary hearing that her conversation with Mr. DeHaven had no effect on her penalty phase verdict.

On a conceptual level, I understand the court's ruling, but it still seems to me that despite the defense not arguing residual doubt, there is a substantial likelihood that DeHaven's comments had some effect on Juror #2 deciding to impose the death penalty. If, as the Supreme Court has said, death is different, shouldn't courts more readily find substantial influence/prejudice rather than deciding arguably close calls against the condemned?



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