EvidenceProf Blog

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

Wednesday, November 6, 2019

A Post on the Oral Arguments in the Joey Watkins Case

Today, there were oral arguments in the Supreme Court of Georgia in the Joey Watkins case, which we covered in Season 2 of the Undisclosed Podcast. So, what happened at those oral arguments, and what can we expect?

The State's Theory of the Case Against Joey Watkins

On the day that Isaac Dawkins was fatally shot, Joey Watkins made a phone call that pinged a cell tower at 7:15pm. Thereafter, a 911 call was made at 7:19pm reporting the Isaac Dawkins shooting. And, while cell tower pings can be unreliable for determining the location of a cell phone, a cell tower expert was able to conclude that, based on the elevations in the areas surrounding the cell tower that was pinged, Joey's phone was at least 8.2 miles away from the scene of the shooting (6.3 miles from where eyewitness Wayne Benson first saw two cars in a game of cat-and-mouse and another 1.9 miles to the scene of the shooting). After deliberating, the jurors were split 10-2 in favor of a guilty verdict when the jury ended deliberations on a Friday afternoon. Thereafter, over the weekend, one of the holdout jurors drove the route (incorrectly, we believe) to determine whether Joey could have made it to the scene of the shooting by 7:19pm. Based on thinking (again, incorrectly, we believe) that Joey could have made the drive in 4 or so minutes, the juror changed her mind about guilt and relayed the results of her drive test to another juror.

Additionally, the State claimed that Joey shot Isaac's dog and placed the dog on Isaac's grave and also claimed that Joey could have used the same gun to shoot both Isaac and his dog. At trial, prosecutor Tami Colston told the judge that no bullet was recovered from the dog, so the State had no idea whether the caliber of that bullet was the same as the caliber of bullet used to shoot Isaac.

The Two Claims in Joey's Successor Habeas Petition

Juror Misconduct Claim: Jurors are supposed to rely upon evidence presented in the courtroom in rendering their verdicts. They are not allowed to rely upon extraneous prejudicial information, such as visiting the crime scene. Amazingly, there is actually another Watkins case from Georgia in which a jury verdict was reversed based on jurors doing a drive test like the one done in the Joey Watkins case. I wrote about that case in this blog post.

Brady/Grave Dog Claim: There was a bullet recovered from "grave dog," and it was a different caliber than the bullet used to kill Isaac Dawkins. Indeed, a chain of custody log shows that Tami Colston was given that bullet the very same day that she told the court that she was unaware of a bullet being recovered from grave dog. That chain of custody log, however, was not linked to the Isaac Dawkins case and was never disclosed to the defense. Instead, it was uncovered after the Georgia Innocence Project (GIP) submitted an Open Records request. According to the GIP, (1) the evidence linking Joey to the grave dog shooting was already tenuous/non-existent, meaning that the different caliber would have been enough to get evidence connected to grave dog excluded; and (2) evidence connected to grave dog turned the jury against Joey, making its non-disclosure a Brady violation.

Can a Successor Habeas Petition be Brought?

To bring a successor habeas petition, a defendant must establish that (1) he is pleading a Constitutional violation; and (2) there is due diligence in presenting the claims to the court. The circuit court rejected Joey's successor habeas petition, finding lack of due diligence, i.e., finding that Joey should have presented both of his claims in his first habeas petition.

Today's Oral Arguments

Today's oral arguments understandably focused on the two things that a defendant must establish to bring a successor habeas petition as well as public policy. For a pretty fully accounting of what happened, you check out my live Tweet thread. And the oral arguments should be archived here tomorrow. In this post, I will just focus on the three key issues:

Constitutional violation

There were no questions about whether the Brady/grave dog claim is a Constitutional claim. This is likely because it's clear that this claim is a Constitutional claim. Under the Brady doctrine, the State has an affirmative duty to disclose material exculpatory evidence to the defense under the Due Process Clause. Therefore, Joey's team has clearly pleaded a Constitutional violation under the Due Process Clause.

But what about the juror misconduct claim? Federal Rule of Evidence 606(b)(2)(A) states that jurors can provide post-verdict testimony about whether "extraneous prejudicial information was improperly brought to the jury’s attention." And Georgia applies the same evidentiary principle. This means that the juror who did the drive test in Joey's case acted improperly and that Joey has a rules-based remedy. But does this mean that there was a Constitutional violation?

About half of the Justices' questioning of defense counsel focused on this question, and the questioning was pretty tough. Defense counsel basically had two responses: (1) it could be a Confrontation Clause violation because the juror doing the drive test was essentially a witness against Joey who he couldn't confront; and (2) the Supreme Court of Georgia's opinion in Bobo v. State, 327 S.E.2d 208 (Ga. 1985), establishes that the juror's drive test was a Due Process violation.

I think the Due Process argument is the stronger one. In Bobo, the court held by

Extra-record statements made by a juror concerning the defendant during the course of jury trial are not presumptively so prejudicial as to infect the verdict and require that the defendant be given a new trial....A jury verdict will not be “upset solely because of such statements unless the statements are so prejudicial that the verdict must be deemed ‘inherently lacking in due process.’”...See Watkins v. State, 237 Ga. 678, 229 S.E.2d 465 (1976).

This language makes clear that the juror drive test in the 1976 Watkins case was a Due Process violation, and the Supreme Court of Georgia also found a Due Process violation based on similar juror misconduct in Bobo: "[W]e find, for the following reasons, that the juror misconduct by the jurors in this case was so prejudicial that Bobo's conviction must be reversed."

There is thus a strong argument that the juror misconduct in Joey's case was a Due Process violation, making his claim a Constitutional claim.

Due Diligence

While the Justices hammered defense counsel over whether Joey was making a Constitutional claim, they hammered the State's attorney over his claim that Joey didn't exercise due diligence in presenting either of his claims. The State's attorney claimed there was a lack of due diligence by Joey because he/his attorneys could have interviewed jurors and filed an Open Records request before he filed his first habeas petition. The Justices continually asked the State's attorney whether the fact that these steps could have been taken meant that they must be taken to satisfy the due diligence test, especially in the absence of any indication of wrongdoing by the State or the jurors. The State's attorney didn't really have an answer to these questions.

Public Policy

These due diligence questions then tied into the Justices hammering the State's attorney on public policy. They continually asked the State's attorney about the unintended consequences of his argument that failure to interview jurors and file an Open Records request meant a lack of due diligence and waiver. Wouldn't that mean that every defense attorney whose client was convicted would pester every juror to try to uncover misconduct? Wouldn't that lead to an Open Records being filed in every case in which a defendant was convicted? And, if counsel didn't do this, would this be ineffective assistance of counsel? And wouldn't defense counsel also have to investigate possible misconduct/bias by the judge, the bailiff, etc.? Essentially, the Justices were asking whether a ruling against Joey would lead to a criminal justice system that would look pretty terrible for defense attorneys, the State, and jurors. And the State's attorney didn't really have any answers. Indeed, at the end, a Justice asked the State's attorney whether his office had a practice of preparing ("mooting") its attorneys before they did oral arguments, which was not a good sign for him.

Meanwhile, there were also public policy questions for defense counsel about line drawing. Would it also be a Due Process violation if a juror had pre-existing knowledge of the distance between the cell tower ping and the scene of the shooting? Would it also be a Due Process violation if the juror happened to find herself driving the same route as Joey (which might have partially been the case here)? Would it also be a Due Process violation if the juror didn't share the results of her drive test with another juror (which also might have been the case here)? The Justices' point was this: If we grant Joey relief, would we also have to grant relief to many other defendants based upon less severe jury misconduct? And, frankly, defense counsel didn't have great answers to these questions...because...

Remand

As a couple of Justices observed, there was no evidentiary hearing in this case. The Circuit Court denied Joey's successor habeas petition without hearing testimony from the juror who did the drive test or the other holdout juror. This raised the possibility that the Justices will remand so that such a hearing can be held.

Conclusion

There are three likely outcomes: (1) the Court finds that there's already enough evidence for a plausible claim or claims by Joey and remands for the Circuit Court to reach the merits of one or both of Joey's claims; (2) the Court finds that an evidentiary hearing needs to be held to determine if Joey has a plausible claim or claims and remands for such a hearing; or (3) the Court finds that Joey has no plausible claim or claims and affirms the circuit court's dismissal of Joey's successor habeas petition.

While predicting the results of such oral arguments is always tough (as in the Adnan Syed case), I think there's enough her for the court to remand, either for an evidentiary hearing or for a direct ruling on the merits of at least one of Joey's claims. And, I think the jury misconduct claim is a clear winning claim on the merits.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/11/today-there-were-oral-arguments-in-the-supreme-court-of-georgia-in-the-joey-watkins-case-which-we-covered-in-season-2-of-th.html

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Comments

How did the juror misconduct come to light in 2016? Did GIP or Undisclosed have something to do with it? Just curious! Is the cell phone location evidence entirely played out to no avail? If so, I like how the juror misconduct claim brings it up again. I’ll never forget the cell expert saying that this case haunts him.

Posted by: Brenda Pawloski | Nov 7, 2019 5:37:06 AM

Susan interviewed the juror in 2016 for Undisclosed.

Posted by: Colin Miller | Nov 7, 2019 7:59:15 AM

Colin, as always, this was another really great post. When do you expect Joey will have a response from the Court?

Posted by: Amanda Graveland-Daines | Nov 7, 2019 10:56:45 AM

Awesome! Thanks for sharing such a great article. This is really helpful information.

Posted by: FamilyLaw | Nov 8, 2019 11:21:53 PM

in terms of the constitutional question, didn't the juror who did the drive test effectively "testify" to the other juror that the drive could have been done within the prosecutor's timeline? The defense counsel in the oral argument stated that it didn't matter if the juror told another juror. In fact, he didn't seem to even know if the juror who did the drive test shared her findings with another juror.
To me, the confrontation clause analysis hinges on this "testimony" from one juror to the other about the results of the drive test without the defendant's right to offer opposing testimony.
Can you address this further? was this a missed opportunity to establish a per se rule on when juror misconduct might give rise to a 6th amendment violation? (For example, when a juror wrongfully engages in a test of the evidence, AND SHARES THE RESULTS OF THE TEST WITH ONE OR MORE OTHER JURORS, its a Confrontation Clause violation.)

Posted by: Jill | Nov 14, 2019 7:36:52 AM

I hate these types of cases when the evidence is quite clearly a violation of due process, but the states argument is basically “Yeah but... I mean, come-ann! No big deal, Amirite?”

It’s shocking how often courts agree and deny relief.

Posted by: Paul | Nov 20, 2019 5:37:06 AM

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