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July 3, 2009 |
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| June 13, 2008 |
By: Bud Newman |
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ury foreman Todd Underwood committed jury misconduct by consulting an online dictionary during deliberations in a first-degree murder trial, attorneys on both sides agree.
Palm Beach Circuit Judge Charles Burton heard from jurors Wednesday to decide whether Underwood’s research, which was shared with the rest of the panel, was serious enough to endanger the guilty verdict on a lesser charge.
Palm Beach Circuit Judge Edward Garrison, a 28-year bench veteran, said in an interview that allegations of juror misconduct are rare even though he handled two allegations in the last four months.
Others say it’s much more common than most judges and attorneys realize.
“If we knew how many people lied during jury selection, we would be sick to our stomachs,” said Coral Gables criminal defense attorney Brian Bieber of Hirschhorn & Bieber. “It happens way more often than we know and more frequently than trial lawyers would like to think.”
Some minor misconduct “probably happens in every case,” Garrison conceded. Examples would be jurors talking about the case among themselves before deliberations or following news reports even though they are instructed not to.
“That’s not necessarily an automatic reversal,” the judge said.
In Underwood’s case, he violated Burton’s jury instructions by using his iPhone to access the Internet during a break in deliberations in the trial of Jose Tapanes. A bailiff handed over the phone when Underwood left the jury room.
Tapanes was charged with shooting a neighbor to death after a 2006 altercation in the suburban Acreage neighborhood.
Underwood used his phone to check the meaning of “prudence” because several jurors were unsure what it meant and handed back his phone.
When deliberations resumed, he shared his recollection of the definition with fellow jurors, who were deciding whether to accept Tapanes’ self-defense claim.
The question of whether Tapanes acted prudently was a central issue as the jury decided his fate. They convicted him of the lesser offense of manslaughter.
What Underwood did by bringing outside information into the jury room without the knowledge or permission of the judge and lawyers violated the judge’s instruction barring outside contact.
Underwood’s action came to light when another juror wrote Palm Beach County Public Defender Carey Haughwout, who defended Tapanes.
Juror Adele Favorito of Boca Raton said Underwood told jurors the definition and assured them that Tapanes would serve little or no prison time if convicted of manslaughter. In reality, the sentence can be up to 30 years.
His comment about potential punishment was significant because the jury initially voted 8-4 for acquittal but agreed on manslaughter after hearing Underwood’s mistaken assurance. The jury has no say over the sentence — only guilt or innocence.
Favorito’s letter prompted Burton to call the jurors back for individual interviews Wednesday to consider the question of juror misconduct and Haughwout’s demand for a new trial.
Nine of the 12 jurors showed up. Two absentees were on vacation but were reached by phone. The last was out of the country and could not be contacted.
Prosecutor Adam McMichael conceded misconduct to Burton but claimed the effect was harmless and not prejudicial enough to warrant a new trial.
Haughwout strongly disagreed.
“I don’t know how you can conclude beyond a reasonable doubt that it was harmless,” she told Burton. “What Mr. Underwood did was clearly juror misconduct.”
She said the term prudence “was pivotal to this case” and Underwood’s use of an online dictionary “is reversible error.”
Burton said he would rule soon on Haughwout’s request. Even though judges have discretion to punish jurors who violate rules, Burton said he has no plans to punish Underwood.
Garrison said judges “cringe when we get allegations of juror misconduct” because “it’s kind of a minefield” deciding whether allegations warrant calling back jurors or going even further.
“We hope it’s inadvertent,” he said of alleged misconduct. However, if the charge is serious such as attempted bribery or other coercion, it could lead to criminal contempt charges against a juror. He said he has never overturned a verdict due to juror misconduct.
Miami civil and criminal trial attorney Roy Black of Black Srebnick Kornspan & Stumpf said, “Judges are reluctant to grant mistrials because of the time and cost involved, and they’re reluctant to set aside verdicts.”
Misconduct “has to be fairly prejudicial” and egregious to warrant a new trial, he said.
Bieber agreed.
“Judges are very careful to err on the side of caution because reversals happen often, and the last thing a trial judge wants to do is retry a case when a mistrial could have been prevented,” he said.
Black recalled defending a client who was convicted of federal tax evasion. During trial, he said a juror, in violation of the judge’s instructions, contacted his personal accountant to ask questions about issues in the case.
“He wanted an independent idea about what the accounting principles were,” Black said of the juror. When that came out, Black moved for a mistrial. The judge called the jurors in for interviews but “didn’t find any misconduct” sufficient to reverse the guilty verdict.
However, the 11th U.S. Circuit Court of Appeals reversed the conviction and ordered a new trial, Black said. Ultimately, the case against his client was dismissed.
While there is case law that sets general standards for juror misconduct, Black noted judges have a lot of discretion in making that decision.
“The system works fine,” he said. “You have to give the trial judges discretion. You just can’t have ironclad, concrete rules.”
Black was an unwitting witness to one of the most notorious instances of jury tampering in South Florida while he served on the defense team for Miami drug runners Willie Falcon and Sal Magluta. The two defendants were cleared with help from bribed jurors in 1996, and the acquittals stood.
The Florida Supreme Court ruled in 1998 that juror misconduct generally must involve “external” elements rather than internal elements tied to deliberations. Federal courts use a similar standard.
The general rule is that “what happens in the jury room stays in the jury room,” Garrison said. “The case law is quite clear.”
Coincidentally, a juror told Broward Circuit Judge Ana Gardiner on Wednesday that she felt pressured last month by the other 11 jurors to convict a man of second-degree murder when she preferred manslaughter. The judge ruled it was too late to change her mind, the South Florida Sun-Sentinel reported.
While rare, Bieber said “the trend is increasing” of jury candidates lying about their backgrounds and possible conflicts that might disqualify them from service. Partly in response, lawyers are doing more thorough background checks on potential jurors.
Ten years ago, he said the most common form of juror misconduct was talking with relatives about a case or following news accounts, but now “the most common form of juror misconduct is searching the Internet during trial.”
The Internet “is a far more fertile ground for juror misconduct” because “people have some curiosity and want to look into it” on their own, Black said.
Misconduct “is an extremely serious problem that has the potential to destroy a person’s life in a criminal case or cause destruction or ruin to a person’s life in a civil case,” Bieber said.
“There’s no way to prevent certain misconduct,” he added. “It’s going to happen.”
Bud Newman can be reached at bnewman@alm.com or at (561) 820-2075.
Charles Burton photo by Melanie Bell |
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