By Jeff Adachi
In his legal thriller “The Runaway Jury,” author John Grisham tells a fictionalized account of a stealth juror who connives his way onto a jury in a tobacco litigation case in order to influence the outcome for his girlfriend, whose parents died from smoking. While this plotline made for a gripping movie, the consequences of such dishonesty for the criminally accused can be devastating.
For one accused of a crime, a just verdict depends on the honesty and objectivity of the jurors. The foundations of our legal system and the Constitution recognize this simple truth. It is spelled out in the Sixth Amendment, which guarantees an impartial jury. It is protected by safeguards on both sides of the justice system, such as peremptory challenges, challenges for cause and voir dire. It has been upheld by the Supreme Court as a fundamental right.
So what happens when, after a conviction, it is revealed that a juror concealed material facts or lied about his or her past?
As early as 1933, Justice Benjamin Cardozo, writing for a unanimous Supreme Court, declared that a juror who lies his way into the jury room is not a juror at all. “If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.” Cardozo continued, “His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham.”
California courts have also recognized the fundamental importance of juror honesty. One of the first California cases to consider a juror’s concealment of material facts is People v. Blackwell, decided in 1987. Blackwell, who was charged with killing her husband, presented a battered-wife defense based on a long history of abuse at the hands of her alcoholic husband. During voir dire, Juror R denied any experience with alcoholism or physical abuse in her family. After Blackwell’s conviction, it came to light that Juror R had been abused by a former husband who became violent when drinking and that she believed the defendant should have handled the problem without resorting to violence.
Blackwell’s new trial motion argued that Juror R’s failure to reveal her prior experiences proved bias. The 1st District Court of Appeal agreed and reversed Blackwell’s conviction, finding that the juror was intentionally dishonest when she falsely answered a specific, unambiguous question.
The other seminal case was decided by the 9th U.S. Circuit Court of Appeals in 1998. In Dyer v. Calderon, the federal appeals court reversed the defendant’s four murder convictions because a juror had falsely answered that she and her relatives had never been victims of a crime or accused of a crime. It was later discovered that the juror’s brother had been shot and killed six years earlier and that her husband had been arrested and jailed on a rape charge before trial.
Writing for the court, Judge Alex Kozinski observed that “an irregularity in the selection of those who will sit in judgment casts a very long shadow. A perjured juror is as incompatible with the truth-seeking process as a judge who accepts bribes.” The 9th Circuit held that even though the juror had claimed she was fair, her bias should be implied from her intentional concealment. As Kozinski explained, “the individual who lies in order to improve his chances of serving has too much of a stake in the matter to be considered indifferent. Whether the desire to serve is motivated by an overactive sense of civic duty, by a desire to avenge past wrongs, by the hope of writing a memoir or by some other unknown motive, this excess of zeal introduces the kind of unpredictable factor into the jury room that the doctrine of implied bias is meant to keep out.”
Two recent California decisions addressed similar claims of juror misconduct, with two very different results.
In In re Boyette (2013), the state Supreme Court upheld a conviction in a death penalty double-murder case in which a juror who had denied having any criminal history was later found to have suffered several criminal convictions.
The juror in Boyette stated in a juror questionnaire that he had never been arrested or convicted of a crime. The juror presided as foreperson of the jury that convicted Boyette and sentenced him to death. On a habeas hearing, the defense discovered that the juror had been convicted of a felony 30 years earlier, had been arrested for robbery 20 years earlier and had served six months in jail on a drunk driving case 10 years before the trial.
Since the juror’s misconduct was discovered years after the conviction, and no findings on this issue had been made by the trial judge, the Supreme Court assigned a referee to hold a hearing to determine if the juror had deliberately lied. That referee found that the juror believed his 30-year-old conviction had been expunged and that he misunderstood the question as to the other arrests and conviction and thus did not deliberately conceal his criminal history. The Supreme Court, which called the juror’s claims “dubious,” said it was bound by the referee’s findings and denied relief.
Given the facts of Boyette, I cannot fathom how the referee found excusable the juror’s failure to disclose his criminal history. There are few questions more straightforward than “Have you ever been accused of a crime?” It is incredible to believe that any person with a long and memorable history of arrests would fail to mention any of these accusations. Advocates trying to reverse convictions based on juror misrepresentations should not be dissuaded by Boyette, however, as that case is dependent on the referee’s incredulous findings.
People v. Pizarro (2013) resulted in a far different outcome In Pizarro, a sexual assault and murder case that had been tried twice before,Juror No. 9 failed to reveal several criminal convictions on voir direand had conducted Internet research, reading an appellate decision about the defendant’s two prior trials for the same charge, which had been reversed by the courts. The trial court had denied the defendant’s new trial motion. However, the Court of Appeal reversed, finding that “investigating the case on his own made a mockery of the trial process.” The Court concluded, “We view that juror’s behavior in this case as criminal.”
Where Boyette stumbles, Pizarro succeeds by acknowledging the central role juror honesty plays in our fundamental rights. The Court of Appeal rejected the prosecution’s contention, based on People v. Carpenter, that the evidence of Pizarro’s guilt was “truly overwhelming” and therefore any juror misconduct was harmless. In Carpenter, the Supreme Court held that juror misconduct claims of extraneous influence were subject to a harmless error analysis.
“Actual bias does not require a showing of prejudice before a verdict will be set aside, because a defendant is entitled to 12 unbiased jurors, not 11, regardless of whether an unbiased jury would have reached the same verdict,” the court wrote.
In other words, using a harmless error analysis to test juror misconduct and allowing a verdict to stand because of overwhelming evidence of guilt is inconsistent with the guarantee that jurors be impartial and free of bias.
The Court of Appeal urged the Supreme Court to reconsider its Carpenter decision. “We believe that harmless error analysis should not apply to cases of juror bias, whether actual bias or inherent bias,” the court wrote. “The test of whether a juror was influenced by the extraneous information should not be limited to the situation where it caused the juror to cast a different vote than the juror would have cast if the extraneous material had not been considered.
When a juror lies on voir dire examination, the very heart of our justice system is undermined. We empower jurors with great power, and that power brings with it grave responsibility. Those who deceive their way into the jury box should not be trusted with our lives and liberty.
Jeff Adachi has served as San Francisco’s elected public defender since 2003.