EvidenceProf Blog

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

Monday, June 11, 2018

Court Finds Hostility & Pressure on Holdout Juror Not Enough to Undo Defendant's Death Sentence

Similar to its federal counterpart, Section 24-6-606(b) of the Georgia Code provides that

Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror's statements be received in evidence as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the jury deliberations 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; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror's attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.

This rule basically has an external dichotomy. Jurors can testify about non-jurors influencing them (e.g., through threats) or about being exposed to evidence not presented in the courtroom (e.g., the juror in the Joey Watkins case doing a drive test). Conversely, jurors generally can't testify about behavior by other jurors, no matter how offensive. A good example of this can be found in the recent case, Sears v. Sellers, 2018 WL 2364283 (N.D.Ga 2018).

In Sears, Demarcus Sears was given the death penalty.

The lone-holdout juror, Angel Fisher (Fisher), an African-American woman, testified before the trial court on remand that she was the only juror who would not agree to sentence Petitioner to death....According to Fisher, the other jurors reacted with hostility and put a great deal of pressure on her. The foreman told her that she might be tried for perjury because Fisher did not believe in the death penalty but had testified during voir dire that she could vote for a death sentence....The foreman went so far as to send a note to the judge requesting a transcript of the juror’s voir dire testimony along with the statutory definition of perjury....Fisher also testified that this made her feel afraid, because even though she knew that she had not lied during voir dire, she did not want to be prosecuted for perjury, and that was “part of the reason” why she changed her vote to death....Fisher testified that she wrote a note to the trial judge, complaining that the foreman was being hostile towards her, but the judge did not respond

Sears first appealed in state court in Georgia, with the Supreme Court of Georgia ultimately concluding as follows:

[Petitioner] contends the testimony of juror Fisher, adduced upon remand, demonstrates that the actions of the trial court had a coercive effect upon her verdict. In this regard, [Petitioner] points out that Fisher testified she was afraid of being prosecuted for perjury, and she believed the trial court wanted her to change her vote because it singled her out by name and urged the jury to continue deliberating when it knew the nature of the jury’s numerical division. We cannot accept this contention.

Fisher, a school teacher, had a bachelor’s degree in criminal justice and had attended graduate school. She was the lone holdout for a life sentence-until she changed her mind. Although she testified that she felt bullied by the threat of perjury, she knew that she had not lied under oath. She felt intense pressure from the other jurors. (“I remember being yelled at basically because I was—they were angry at me. They wanted me to change my mind. So they were insulting my character and things like that.”) Ultimately, she gave in to that pressure. (“I changed my mind because they had—I mean I was ostracized. And I was just—I was basically made to change my mind by the other jury members.”) Viewing Fisher’s testimony as a whole, it is clear that she voted for the death penalty because she felt pressured to do so only as a result of the “normal dynamic of jury deliberations.”

In rejecting Sears's ensuing federal habeas petition, the United States District Court for the Northern District of Georgia concluded that this decision did not violate clearly established federal law. According to the court,

Rule 606(b) of the Federal Rules of Evidence bars consideration of Fisher’s allegations that she was subjected to pressure by other jurors for being a holdout for a life sentence. See United States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989)  (noting that “alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the guilty verdict”); see also United States v. Lakhani, 480 F.3d 171, 184-85 (3d Cir. 2007) (discussing the rationale for the rule and noting that “[t]estimony concerning intimidation or harassment of one juror by another falls squarely within the core prohibition of the Rule”) (citation and quotation omitted); United States v. Decoud, 456 F.3d 996, 1019 n.11 (9th Cir. 2006); United States v. Briggs, 291 F.3d 958, 961 (7th Cir. 2002) (barring evidence of one juror being “ ‘intimidated’ by other jurors into finding [the defendant] guilty”); United States v. Brito, 136 F.3d 397, 414 (5th Cir. 1998) (deeming evidence of internal coercion inadmissible per Rule 606(b)); United States v. Tallman, 952 F.2d 164, 167 (8th Cir. 1991) (“To admit proof of contentiousness and conflict to impeach a verdict under Rule 606(b) would be to eviscerate the rule.”).

In Jacobson v. Henderson, 765 F.2d 12, 14 (2d Cir. 1985), the Second Circuit concluded there was no basis to impeach the verdict even in the event of “screaming, hysterical crying, fist banging, name calling ... the use of obscene language, by other jurors” and a thrown chair in the jury room. In United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998), the court, relying on Rule 606(b), rejected defendants' argument that they were entitled to a new trial based upon juror misconduct. In Roach, a juror submitted a post-trial affidavit claiming she had been unwilling to convict defendants but that other jurors had pressured her into changing her vote. One juror threatened her with incarceration, and there were overt racial comments in the jury room because she was one of two Native American jurors and the only holdout against convicting three Native American defendants. Id.see also United States v. Barber, 668 F.2d 778, 786 (4th Cir. 1982) (no basis to impeach verdict where juror claimed that foreman “scared [her] to death”); United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981) (“intimidation or harassment among jurors” not competent to impeach verdict).



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So is it perjury to claim you would vote for the death penalty to only later say you do not believe in it?

Posted by: Robert | Jun 12, 2018 4:07:21 PM

The court's broad definition of "normal dynamic of jury deliberations" seems problematic. What behavior is is disallowed?

You wrote:
"In Jacobson v. Henderson, 765 F.2d 12, 14 (2d Cir. 1985), the Second Circuit concluded there was no basis to impeach the verdict even in the event of “screaming, hysterical crying, fist banging, name calling ... the use of obscene language, by other jurors” and a thrown chair in the jury room."

Even physical violence or the threat of physical violence (the thrown chair) remains within the bounds of normal deliberations?

Posted by: Jonathan | Jun 13, 2018 6:47:46 AM

I think jurors should be protected from such intimidation and coercion. Every jury should be instructed by the court that such conduct is contempt of court and could result in their being jailed. Maybe this would cut down on this behavior.

Posted by: Fred Moss | Jun 14, 2018 3:41:08 PM

I think there needs to be some kind of training on how to be a holdout. What is the lone holdout to do? How many times are we supposed to tell a judge that we can't reach a verdict (only to be sent back in to keep trying)? What is the holdout supposed to say in a letter to a judge that can get the inappropriate behavior in the jury room (that apparently is being viewed as "normal") to stop. Lone holdouts are rare because they face such extreme pressure (and then ultimately are no longer holdouts). How can we better support people going into the jury pool that we all should be prepared to be the lone holdout if needed (to the very end) -- and how to do that effectively.

Posted by: Jodi | Jun 16, 2018 9:09:31 AM

I still hold that we should do away with using the random public as jurors. Make juror a profession that has strict ethics and education standards, and whose pool of ppl is entirely disconnected from prosecutors and defense attorney offices (dont need so many former prosecutors filling the position like we do now with judgeships).

The degree in college would require philisophy of law, history of law, ethnic and gender studies, LOGIC LOGIC AND MORE LOGIC CLASSES, statistics, probability, and some entry-level bio/chem to round things out, just to name a few. You also wouldn’t need 12–probably just 5 would do, and because they would be professionals, certain behavior like what happens in this case wouldn’t be an issue.

Posted by: Paul | Jun 21, 2018 5:18:47 AM

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