It's a death penalty case, and they're assembling an impartial jury. They ask the jurors various questions on a written questionnaire. Here's one of the questions:
“25. HAVE YOU, A CLOSE FRIEND, OR RELATIVE EVER BEEN ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT COME TO COURT?”
Seems pretty straightforward. Not much ambiguity there.
The eventual foreperson, Pervies Ary, answers this straightforward question in a straightforward way: "No."
The truth, however, couldn't be more different. Here are the actual facts, taken from the California Supreme Court's majority opinion.
Let's take Ary's own criminal history first. In fact, Ary:
"(1) was charged in 1964 with two counts of robbery and grand theft, and was convicted that same year of felony grand theft [and served six months in jail]; (2) was charged in 1971 with seven counts of robbery, but the charges were dismissed for insufficient evidence; (3) pleaded guilty to driving under the influence of alcohol (DUI), a misdemeanor, in 1982 and was placed on probation; and (4) had his probation revoked in 1982 and was reinstated to probation that same year. Ary himself declares he 'was arrested in . . . 1963 and spent some time in jail.'"
Ary's explanation for his straightforward "No" answer notwithstanding this lengthy criminal history? "I misunderstood the question." Yeah. Right.
Remember also that the question didn't just ask about Ary himself, but also his friends and relatives. Again, Ary's answer was a straightforward "No." Here, by contrast, is the truth:
"Ary failed to disclose that his two sons, Pervies Lee Ary, Jr. (Pervies Jr.), and Pervies Lee Ary II (Pervies II), as well as two other relatives, had significant criminal histories. . . . Pervies Jr. (1) was charged in 1986 with four counts of transportation of narcotics, possession, and possession for sale, and pleaded guilty to all four counts in return for being sentenced to three years probation on conditions including 210 days in jail; (2) pleaded guilty the same day in a different case to possession for sale of cocaine and was sentenced to probation on conditions including a consecutive term of 150 days in jail; (3) pleaded guilty in 1987 to sale of marijuana, was sentenced to three years in custody, had the sentence suspended, and was committed to the California Rehabilitation Center in Norco due to his narcotics addiction; and (4) pleaded guilty in 1990 to driving with a suspended license, a misdemeanor. Documents also indicate Ary's second son, Pervies II, had been charged in 1993 with misdemeanor battery and that this criminal charge had been filed the same day Ary was questioned on voir dire in petitioner's case. . . . Ary also [admits] that '[o]ne of my first cousins got a life sentence during the 1950s for killing a man.' . . . Ary testified at the hearing that he had both a nephew and a cousin who were serving sentences of life without parole for murder, and admitted he had revealed neither relative on his jury questionnaire."
Why the "No" answer? Same excuse.
I find the foreperson's justification for these answers laughable. It seems inconceivable to me -- totally inconceivable (and, yes, I know what that word means) -- that Ary simply "mistakenly" answered "No" notwithstanding the lengthy, eminently memorable history described above. I'm instead of the definite conviction something else explains his answers.
Nonetheless, I understand why the majority here refuses to grant relief. The referee at the evidentiary hearing bought Ary's excuse. I cannot fathom making a similar finding myself. It seems stunning.
I nonetheless understand respective roles. I didn't see Ary testify. I wasn't there. The factfinder made a finding, and it's entitled to a ton of deference. So be it. I have deep, deep, super deep reservations about this finding. But it is what it is. So I see where the majority's coming from.
By contrast, the second part of the opinion, I simply don't get.
Here's the issue, and some of the underlying facts. Taken straight from the majority opinion:
"Petitioner alleged in his habeas corpus petition that Ary had urged the other jurors to rent and watch the movie American Me (Olmos Productions, Universal Pictures 1992). The movie allegedly depicts the violence associated with life in a contemporary American prison and focuses especially on Hispanic prison gangs. Petitioner alleged Ary had argued to his fellow jurors that death was the appropriate penalty because petitioner, who was immature and tended to follow strong leaders, would simply join a Black prison gang (such as the Black Guerrilla Family) and continue his murderous ways if given a life sentence, a position that echoed the prosecutor's closing argument. Petitioner further alleged two jurors who were holding out for a life sentence watched the film and eventually changed their vote to impose the death penalty.
Ary's declaration supported petitioner's allegations. He declared: 'I told the holdout jurors that if they wanted to understand what it was like in prison, they should watch the movie American Me. That is based on a true story. Two of the jurors rented the movie and watched it over the weekend. They finally understood that Mr. Boyette could kill again in prison if he was not sentenced to death. After they watched the movie, they changed their votes to death.' . . . .
The evidence adduced at the evidentiary hearing confirmed many of the allegations in the habeas corpus petition and the supporting declarations. Although some jurors had no recollection of any discussion about watching a movie, Ary himself testified that two female jurors 'were so naive about street life' they took the position that life in prison was an adequate punishment because petitioner 'will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to
Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.' Jurors Britton, Mann, Orgain and Perez corroborated this evidence, confirming that Ary and other jurors had urged jurors to watch the movie. Although Ary testified that his advice was directed at two 'naive' female jurors, Juror McClaren recalled that the advice to watch the movie was directed at three or four jurors who were still undecided. Juror Perez had already seen the movie American Me before being chosen as a juror and recalled that other jurors had too.
Juror McClaren admitted she watched the movie American Me during a break in jury deliberations, and Juror Rennie testified she had watched part of the movie. The referee concluded that 'Ary, along with one or more other jurors, did urge two holdout jurors to watch the movie American Me in order to learn more about the nature of a prisoner's life in prison.' Moreover, '[t]wo jurors— . . . McLaren [sic] and . . . Rennie—did watch the movie during the penalty phase deliberations.”
Pardon my French, but: Jesus Christ! We're desperate -- desperate -- to avoid outside influences in jury deliberations. How can we possibly allow a death sentence to stand when it's based not on actual evidence adduced at trial, but on a Hollywood movie?! That can't possibly be okay, right?
The majority nonetheless denies relief.
Inconceivable.
For anyone who's uncertain about whether watching the movie made a difference, I can't say anything more (or better) than what's in Justice Corrigan's dissent:
"The movie American Me stars Edward James Olmos as a young man who is incarcerated and joins a prison gang, which he leads in a violent struggle over drug turf. It is a raw, violent depiction of the American prison system, with multiple scenes of stabbing and sexual assault.
It is this movie that two undecided jurors watched during a break in deliberations, at the urging of the jury foreman and other jurors voting for the death penalty. There is no dispute that these two jurors committed misconduct by actively seeking out information not presented at trial. There is no dispute that the jury did not reach a verdict after a full day of deliberations. The next day, after these two jurors watched the film, the jury deliberated for only 30 minutes before returning a death verdict. . . .
The misconduct must be considered in context. The prosecutor argued against life without the possibility of parole because defendant could join a prison gang and kill again while incarcerated. In urging undecided Jurors McClaren and Rennie to watch American Me, Foreman Ary took up the prosecutor's theme. He
explained at the evidentiary hearing: 'The two jurors, which [were] the two young ladies, they were so naive about street life until they were so determined that he couldn't harm no one while he was in prison for the rest of his life, and we discussed this, we deliberated and discussed it . . . . We have to do something about this because it's been deliberated too long, so I asked these two young ladies, . . . but these two said he will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.” Ary told them the movie was based on a true story. . . .
The timeline of deliberations provides strong evidence of the movie's influence on these two jurors. The jury began penalty phase deliberations on Tuesday, March 23, 19932 at 2:51 p.m. and adjourned nine minutes later at 3:00 p.m. The jury deliberated all day on Wednesday. They resumed deliberations on Thursday at 9:40 a.m. and returned with a death verdict at 10:10 a.m., 30 minutes later.
After a full day of deliberations, McClaren and Rennie remained undecided. That evening, both jurors independently obtained the movie and watched at least part of it. The next day, with little or no discussion of the film, the jury rendered a death verdict within 30 minutes. Given the brevity of deliberations on Thursday, the most reasonable inference is that the movie influenced McClaren and Rennie to vote for death. Indeed, McClaren testified that she was not a 'holdout' juror but 'simply needed more information' before rendering a verdict. The only 'information' she obtained between deliberations on Wednesday and Thursday was the movie. . . .
McClaren testified that she voted for death after seeing the movie. Britton and Perez confirmed that the vote had been 10 to two in favor of the death penalty before McClaren and Rennie saw the film and the vote was unanimous for death thereafter."
Simply put, the movie made a difference. This admittedly improper influence -- a story produced by Hollywood -- changed the minds of the jurors. If that's not prejudice, I seriously don't know what is.
Even after reading the majority opinion for a second time, I just don't understand how it comes out the other way. I couldn't disagree more. Particularly given the tests that we (properly) apply when reviewing whether extraneous information has invaded the province of juror deliberations.
One final thing. Both the majority and the dissent treat the two issues -- Ary's misstatements in voir dire and the influence of the movie -- as discrete events. But, in my view, they're linked. Remember that it was Ary who told the jurors to watch the movie. Something that's clearly improper, and that violated the oaths that the jurors took. Foreperson Ary was actively pushing for death.
I think that Ary's subsequent (undisputed conduct) may give some insight into why he answered the way he did in voir dire. Insight that contrasts quite starkly with his subsequent explanation for why his answers were so starkly divergent with the truth.
We can't let people lie to get on juries. We can't let movies make the difference between someone's life and death.
The result here disturbs me. As does the fact that only two of the seven justices on the California Supreme Court view this case the same way I do.
Because there are a lot of cases that are close. But, in my view, this one isn't.
