Google Search Leads To Remand After Conviction

The District of Columbia Court of Appeals has held that a remand of a manslaughter while armed conviction was required in light of juror non-disclosure allegations.

The trial court had declined to hold a hearing in light of post-trial information uncovered by defense counsel

After trial, defense counsel conducted a “general Google search” of all of the jurors’ names and discovered that one of the jurors, Juror 061, was a registered sex offender with a felony record and that another juror, Juror 703A, had been a complainant in an assault case in 1999. The government subsequently discovered and disclosed that Juror 061 had several additional convictions and that Juror 703A had also been a complainant in a 2000 assault case.

This information was significant because it was inconsistent with Juror 061’s and Juror 703A’s responses during jury selection. At voir dire, the prospective jurors had sworn an oath to tell the truth. They were given a form listing eighteen questions, which the court also read aloud to them. One of the questions was whether the juror, “a close family member or a close friend . . . ha[d] ever been a victim of a crime, a witness to a crime or charged, arrested, brought to court for a crime.” Neither Juror 061 nor Juror 703A circled “yes” for this question or any other question on the form. The court also called the jurors individually to the bench for further questioning by the court and counsel.

 The court

Here, Mr. Poth proffered evidence that Juror 061 and Juror 703A had omitted material information during voir dire. It is possible that these omissions were inadvertent or were not motivated by prejudice. It is also possible that one or both of the jurors were biased against Mr. Poth. Such a prospect, if realized, would have deprived Mr. Poth of a fundamental right in our criminal justice system, and Mr. Poth was therefore entitled under Young to an evidentiary hearing to probe the jurors’ bias.

The trial court’s denial of this hearing on the ground that Mr. Poth’s counsel had failed to exercise due diligence was an error of law.  It may be that where a “defendant knows of possible juror misconduct during trial but does not bring it to the attention of the trial court before the verdict is returned, he waives the right to a new trial on that ground.” Peña v. State, 294 P.3d 13, 23 (Wyo. 2013) (emphasis added); see also United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989); United States v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983). But a defendant otherwise has a right to rely on jurors’ responses under oath.12 See McDonough, 464 U.S. at 554 (“The necessity of truthful answers by prospective jurors if th[e voir dire] process is to serve its purpose is obvious.”). Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.

Congrats to my old friend Enid Hinkes, of Cooperstown, New York, who argued the case for the defendant before the Court of Appeals. (Mike Frisch)