Monday, February 10, 2014

Smith v. Swarthout (9th Cir. - Feb. 10, 2014)

Sometimes you take a flyer.  You know that the "book" says that you should strike a particular juror, but you decide to let the person on anyway.

It was a bad bet by defense counsel.  Defendant's charged with assaulting his wife and forcing her to take numerous Benadryl, Advil and ibuprofen pills in what he told police was her attempt to commit suicide.  A story that collapsed once his wife recovered in the hospital and told everyone what really transpired.  Oops.

He's facing lots of time in prison.  During voir dire, one of the jurors -- Juror No. 6 -- is a retired lieutenant from the NYPD.  Everyone in the universe assumes that the defense is going to bounce the guy.  But counsel says:  "“I think this is going to surprise Juror No. 6. We have a jury. We’ll accept this jury.”


Turns out that Juror No. 6 isn't merely a retired NYPD police officer.  His daughter also lives three houses down from the defendant and the victim.  He's talked about the case with her.  They know the defendant and the victim.  Juror No. 6 knows about the defendant's priors.  He's personally seen the defendant walking around the neighborhood.  A fact that Juror No. 6 distinctly recalls because he "remember[s] commenting, “Geez. There’s a black actually living in his neighborhood.”  Juror No. 6 himself lives three blocks away from the home of the defendant and the victim.

None of which he tells anyone in voir dire.  Despite the fact that this information is clearly relevant to the trial judge's inquiries of the prospective jurors.

But that's not all.  Even after all of this gets discovered -- and the trial judge (for whatever reason) refuses to bounce Juror No. 6 -- then, during deliberations, this juror conducts his own investigation outside of the jury box (reading pill labels, researching the internet, etc.) and tells other jurors about his discoveries.  Which the foreperson then discloses to the judge, since everyone knows that's not okay.  Juror No. 6 admits to some of this misconduct, but claims (as to other parts) that he just "told" the other jurors that "they" could do some internet research if they wanted to discover particular facts.  The other jurors, by contrast, clearly state that that's not what Juror No. 6 said, but instead told them directly about his discoveries on the internet.

Juror No. 6 eventually gets bounced.  But the trial judge nonetheless allows the jury -- including Juror No. 6 -- to render a guilty verdict on two of the four counts.

The United States Supreme Court has held that it's not reversible error to accept a verdict from a juror who gave "honest though mistaken" answers during voir dire.  To hold otherwise, the Court held, would expect far too much perfection from our legal system.

By contrast, despite the fact that many people desperately try to get out of jury service, sometimes, you've got someone who's trying desperately to get on.  In my opinion, that's exactly what transpired here.  Juror No. 6 was desperate to get on the jury of his black neighbor previously charged with attempted murder and now charged with assaulting his wife.  He knew he couldn't lie about being a former NYPD officer, but what he could do was to hide everything else, including but not limited to his contact with and knowledge of his neighbor.  Which is what he did.  And, even when caught, he submitted evasive answers, and downright lies, in an attempt to stay on the jury and be able to convict.  Which he did.

It's nonetheless a testament to (1) our systemic "trust" in jurors (and/or unwillingness to call them liars), (2) the limitations of appellate review, and (3) the constraints to AEDPA that the Ninth Circuit affirms the refusal to grant habeas relief here.  The California courts made an "implicit" (*cough*) finding that Juror No. 6 was merely acting improperly, not deliberately.  Appellate courts, and especially federal courts under AEDPA, cannot deviate from this "reasonable" finding.  Convictions upheld.

The Supreme Court wasn't kidding when it said that justice ain't perfect.