Prosecutor Watched Jury Deliberations

A six-month suspension has been imposed by the Oklahoma Supreme Court for a prosecutor’s misconduct by spying on jury deliberations in a first degree murder trial that he had tried and related misconduct 

In June 2022, Respondent was an Assistant District Attorney and Chief of Criminal for Prosecutorial District 12, consisting of Craig, Mayes, and Rogers Counties. Respondent was responsible for overseeing all criminal assistant district attorneys and made sure all criminal dockets were covered in the three-county district. Respondent mentored and trained the younger prosecutors in the office and was the primary trial attorney on significant cases.

As a result, Respondent was the lead prosecutor in the first-degree murder trial of State of Oklahoma v. Robert Kent Kraft, CF-2018-0465. The Kraft jury trial began on June 27, 2022. Jury deliberations began at approximately 3:00 p.m. on Friday, July 1, 2022.

As a carryover of COVID-safety protocols, the district court judge, Judge Pazzo, had the jury conduct deliberations in an adjacent courtroom on the fourth floor rather than the smaller, confined jury-deliberation room. The courtroom where the jury deliberated was equipped with three security cameras which were not turned off. One camera showed 95% of the courtroom.

The video feed from the courtroom cameras could be monitored from a locked security office on the first floor in the building, with no audio available. The video feed was transmitted to a large monitor and people with access to the room could switch between cameras and zoom in and out. The video quality of the cameras was almost high definition, such that facial expressions and hand gestures were visible on screen, but if one attempted to zoom in close enough to try to read words on a paper the image would become pixilated and illegible.

At approximately 5:00 p.m., an officer allowed Respondent into the security office where the video feed was playing. Respondent alleged that the security team requested his presence in the office to help resolve an ongoing security situation. Tr. Vol. II 516:3–11. All of the members of the security team who testified denied requesting Respondent’s assistance with a security issue and also agreed that the specific security incident Respondent mentioned actually happened several hours later. The officer who allowed Respondent to enter the room could not recall why he did so, but testified that he knew he did not allow Respondent in due to the later security problem because he received a call asking how to handle the security issue after he was home. Tr. Vol. I 181:10–21; 183:11–19. Respondent testified that “[w]hatever little security issue that was there, I mean, within a second or two, that had been resolved.” Tr. Vol. II 519:14–16. After Respondent entered the security room he did not immediately leave. Instead, according to his testimony, he stayed because of curiosity about what was taking the jury so long and because he had nothing else to do while awaiting the outcome. Id., at 519:12–13, 519:21–23, 523:15–16, 570:23–571:4.

Over the next several hours, Respondent left the security room and returned numerous times. Out of security footage covering 168 minutes, Respondent was in the security room for approximately 132 minutes while the jury deliberated. Respondent left repeatedly to smoke, to eat food that his fiancee had brought to the courthouse, and when the jury had questions. After Respondent had been in the security office for some time, he called his second chair, Assistant District Attorney George Gibbs, and instructed him to come to the security office.

While Respondent was in the security office, he watched the jurors deliberate, he manipulated the cameras to zoom in and out, and he discussed with his second chair and the security officers his observations and conclusions based upon what he could see of the jury. At one point, the jury submitted the question, “Does a hung jury give the chance for the State to retry?” to which the judge responded “You have all of the information that you need.” Comp. Ex. 19. At the time the jury submitted the question, Respondent believed the jury was split 11 to 1 from his observations. When Respondent observed the jury submit the question on the video, Respondent immediately left to go to the courtroom for the presentation of the question. Respondent did not disclose to the judge or opposing counsel that he had been observing the jury, or that he had an idea of what the actual vote might be at that moment. When asked why he did not inform the judge at that time that he had been watching the jury deliberate, Respondent testified:

Quite frankly, when we went up to – – I mean, that jury note process was so quick and so fast, and it was, “Hey, got a note, hung jury. Should I just go with the standard reply?” Me and [Defense Counsel] both look at each other and go, “Sure.” And then that’s what he did and we broke contact. I mean, Judge Pazzo and I – – I didn’t think to do it. I should have, but I didn’t, but it wasn’t some intentional, hey, let’s not tell the judge. Again, kind of at that time, I just felt like the trial was over and we’re all just kind of waiting in our own respective manners in which it weighed.[sic]

Tr. Vol. II. 598:20–599:6.

Over the course of the evening, Respondent received several text messages from District Attorney Matthew Ballard and First Assistant Joy Thorp. At approximately 6:30 p.m. DA Ballard texted with Respondent and ADA Gibbs:

DA Ballard: So I heard you got some question about transcripts or something. Any other indication what the jury is thinking?

ADA Gibbs: I think we got a holdout[.]

DA Ballard: Ugh. The other jurors need to wear them down.

Respondent: We got a live one[.]

Comp. Ex. 12. At no time did Respondent disclose to either DA Ballard or First Assistant Thorp that he and ADA Gibbs were actually observing the jury via the video feed in the security office.

Later, Respondent texted ADA Gibbs and said “Getting there. They are doing a lot of murder stabbing re-enactments and no kung fu.” Comp. Ex. 13. Near the end of the evening, Respondent texted ADA Gibbs: “I think they hit G. Come down to security.” Id. Respondent testified that when he sent that text he meant that he believed the jury had reached a guilty verdict. Tr. Vol. II 574:6–9. At 7:51 p.m., Respondent requested that someone let ADA Gibbs into the security office. While observing the jury, Respondent and ADA Gibbs saw the jury submit what appeared to be the final verdict. Without receiving any notification from the court of a verdict, both Respondent and ADA Gibbs returned to the courtroom. Tr. Vol. I 212:9–21.

The jury found Kraft guilty of First-Degree Murder, Deliberate Intent, and fixed punishment at life in prison with the possibility of parole. The judge set formal sentencing for approximately 6 weeks later.

Immediately after returning to the security office after escorting the defendant, Deputy Morgan contacted his supervisor and reported his concerns about the prosecuting attorneys observing jury deliberations in the security room. Id., at 214:4–215:11. The following Wednesday, July 6, Deputy Morgan attempted to speak to Judge Russell, District Judge for Rogers County, who was not in that day. Id., at 215:22–23. The next day, Deputy Morgan spoke to Judge Russell about his concerns and Judge Russell told Deputy Morgan that he needed to inform Judge Pazzo immediately. Id., at 215:23–216:9. Judges Russell and Pazzo then contacted DA Ballard and First Assistant Thorp and made them aware of the allegations. DA Ballard and First Assistant Thorp immediately took steps to begin an internal investigation and preserve any related video. Id., at 320:2–3.

On Monday, July 11, 2022, when Respondent first returned to the office after a previously-planned trip, DA Ballard, First Assistant Thorp, and the Rogers County investigator met with Respondent and ADA Gibbs separately. Respondent admitted that he watched the jury but stated that he didn’t see any problem with it. After being shown a copy of title 21, section 588, Respondent claimed that an officer requested his presence in the room with respect to a security problem with the defendant’s family trying to get into the courtroom. Respondent stated he was in the security room for “30 minutes. Maybe a little more, maybe a little less.” Tr. Vol. I 153:5–6, 168:7–8, 245:17–25; Tr. Vol. II. 579:12–15. He also made statements that it was difficult to see what was going on because the video was very grainy, and that attorneys and judges listen to juries in Tulsa County. Tr. Vol. I 325:17–326:9; Tr. Vol. II 591:6–593:17. DA Ballard, First Assistant Thorp, and the investigator all testified that they were concerned by Respondent minimizing the time he observed the jury. Tr. Vol. I 153:1–8, 246:2–10, 326:21–23. DA Ballard and First Assistant Thorp both testified that after learning the results of the investigation they believed that Respondent fabricated the excuse to enter the security room to watch the jury footage as the altercation he mentioned happened much later that evening. Id., at 151:23–152:25, 324:23–325:16. Finally, the Sergeant in charge of courthouse security and the Rogers County investigator testified that Respondent’s comments about the quality of the video were absolutely not the case and the video was remarkably clear. Id., at 245:25–246:2, 328:15–17; see also id., at 177:6–8. At the end of the interview, DA Ballard informed Respondent that he was suspended with pay.

On July 12, 2022, after confirming that both Respondent and ADA Gibbs had observed the jury in potential violation of title 21, section 588, DA Ballard sent the Attorney General an official request for disqualification of his office, District 12, in the upcoming investigation. Comp. Ex. 5. The following day, Respondent self-reported the matter to the Bar. Comp. Ex. 5. Judge Pazzo and First Assistant Thorp both reported the matter to the Bar as well. DA Ballard subsequently gave Respondent the option of resigning or being terminated from his position and Respondent chose to resign as ADA and Chief of the Criminal Division in Rogers County. Tr. Vol. I 330:1–6. On March 1, 2023, Respondent entered into and agreed to the provisions of an Agreement of Deferred Prosecution wherein Respondent acknowledged that he violated title 21, section 588. Comp. Ex. 17.

Respondent’s offense impact

Respondent not only observed the jury for over two hours, he failed to disclose that he was doing so to the court, or opposing counsel, even when dealing with jury questions. This is egregious behavior. Further, when initially confronted by his supervisors after the trial, Respondent admitted that he observed the jury due to curiosity; but immediately after he was confronted with the statute that he violated, Respondent changed his reason for originally entering the security office to say he was only in the security office because he was asked to help. See Tr. Vol. II. 567:4–569:25. At that time, Respondent asserted that he was in the security room for thirty minutes, possibly slightly less or more. Yet not a single member of the security team, including the supervisor who allowed him into the room, agreed that he was ever consulted on a security issue that day. Later, Respondent stated that the incident for which he was asked to enter the office lasted only a few moments; yet, he was in the security office for approximately two and a quarter hours, continually leaving and returning. Respondent also informed his supervisors that the video feed was grainy and that he couldn’t see much, when that was also false. Instead, the video was high enough quality to make out the juror’s facial expressions and hand gestures. Respondent misrepresented and was deceitful regarding the reason he entered the security room, the length of time he watched the jury, and what he observed. Due to Respondent’s initial admission of his behavior, followed by the excuses after he learned he had violated a felony statute, we believe Respondent had the requisite intent to deceive when making his statements to his supervisors. We find clear and convincing evidence that Respondent engaged in conduct involving deceit and misrepresentation in violation of ORPC 8.4(c).

Mitigation and aggravation

We may consider mitigating circumstances to assess the appropriate measure of discipline. State ex rel. Okla. Bar Ass’n v. Durland, 2003 OK 32, ¶ 15, 66 P.3d 429, 432. Respondent has years of former and current service to his country through the military and his state, as an officer in the Oklahoma National Guard and as a prosecutor. Respondent was a career prosecutor, having tried approximately sixty jury trials in the nine year interim from when he became licensed in Oklahoma in 2013 and the criminal case involved here. After being confronted by DA Ballard and First Assistant Thorp, Respondent did not deny that he observed jury deliberations. He also volunteered the information that ADA Gibbs was only in the security room at his bequest, thereby accepting responsibility for his own actions. Respondent self-reported the incident to the Bar after that meeting. Respondent cooperated in the subsequent investigations. He entered into a Deferred Prosecution Agreement and has been diligent in completing the terms. He also voluntarily entered into an agreement with Lawyers Helping Lawyers.

On the other hand, Respondent failed to disclose to opposing counsel or the court that he was observing the jury. Respondent deflected from the importance of what he did, and misrepresented the reason he entered the security office, amount of time he observed the jury, and what he was able to see. Respondent failed to disclose his observations at the time to his supervisors. Respondent ordered his inexperienced subordinate, whom he was responsible for training and supervising, to come to the security office on two occasions. In his answer, filed nine months after the incident, Respondent still maintained that he had not violated the statute, even after entering into the Deferred Prosecution Agreement in which he admitted doing so. Respondent also excused his behavior by arguing that other attorneys and judges had committed similar actions without repercussions. Another defense attorney testified before the Trial Panel that he had previously confronted Respondent for eavesdropping on jury deliberations in Tulsa County in 2017 and warned Respondent that it was improper to do so; Respondent said that “the only thing that [attorney] said yesterday that was the truth was when he spelled his name” and accused the attorney of testifying only because he wants to see Respondent reprimanded. Tr. Vol. II 553:19–21, 556:18.

Sanction

It is common knowledge that observing jury deliberations is unacceptable. Respondent’s actions were widely reported in the media, bringing discredit and shame upon the legal profession. As a result, there is sure to be a chilling effect on potential jurors whom have heard of this matter. An assistant district attorney is a minister of justice, second only to a judge. Scanland, 1970 OK 94, ¶ 15, 475 P.2d, at 376; see also ORPC 3.8, Comment 1. But instead of behaving accordingly, Respondent’s actions “take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice.” Miller, 2013 OK 49, 309 P.3d, at 121 (Taylor, J., dissenting). Respondent’s behavior is precisely the type that undermines public trust in the legal system and profession. The privacy of jury deliberations is sacrosanct. The importance of preserving the sanctity of jury proceedings is monumental. As such, the discipline imposed must reflect to the public how seriously we treat this misconduct. We find that suspension for six months is the appropriate discipline.

KTUL 8 Tulsa reported that Respondent and his co-prosecutor had resigned. (Mike Frisch)