“When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct”
How later courts described this case
- “When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct”
- embracing "probability of prejudice" test
Written by the judges who cited it.
The opinion
CHIN, J.—
I concur fully in Justice Baxter’s opinion. This case presents very troubling facts, troubling not because they show jury misconduct but because they show the lengths to which petitioner’s counsel apparently went to generate a claim of misconduct.
In 1982, 12 people were chosen for the difficult task of being jurors in a death penalty case. After they rendered their verdicts, they no doubt believed that they had done their duty, and their task was completed. They were wrong.
In 1989, seven years after trial, petitioner’s counsel contacted these jurors seeking grounds to claim jury misconduct. She discovered no evidence of misconduct. Undaunted, in 1994, two new investigators questioned some of the jurors and induced several to sign declarations, including Juror Gholston, who was 76 years old at the time. Petitioner then filed this petition for writ of habeas corpus accusing Gholston of committing serious misconduct at the trial 12 years earlier. Due to these allegations, we issued an order to show cause and ordered an evidentiary hearing. At the age of 79, and 15 years *308 after she believed her jury service had concluded, the accused juror was forced to defend herself at a new trial in which she was, in effect, the defendant. She had to testify and subject herself to cross-examination about events of long ago and about the declaration she signed at petitioner’s behest. Several other jurors also had to testify to defend against the charges.
At the hearing, the allegations were proven unfounded. Today, more than 16 years after trial, and after a lengthy and expensive evidentiary hearing, this court exonerates the accused juror, now an octogenarian. But at what cost to the criminal justice system and to citizens called on to perform one of the most onerous of civic duties?
Although the referee made no specific findings regarding the investigation leading to the allegations, and we need not do so either, the record suggests that the investigators were more interested in generating a misconduct claim where their predecessor had failed than they were in the truth. Enough former jurors testified about questionable investigative tactics to cause serious concern. Jurors are not paid enough for their service to have to relive that service and defend themselves against unfounded accusations years after trial.
This court’s experience with other capital habeas corpus petitions suggests that this case is but an extreme example of what is almost a routine practice of trying to create misconduct claims. At the least, it appears that, even absent any basis to suspect misconduct, investigators routinely question jurors in the hope that one will say something to support a claim of misconduct by that or some other juror. Obviously, there must be a mechanism for redress on those rare occasions when the jury system has indeed gone awry, and actual misconduct taints the verdict. But fishing expeditions by litigants who lost at trial must not transform the quest for misconduct claims into the witch-hunts of the next millennium. Somehow a balance must be found. The majority makes some useful suggestions, and existing law, including recent legislation, provides jurors some protection. (Maj. opn., ante, at pp. 303-304, fn. 23.) But perhaps the time has come for the Legislature to enact a comprehensive “Juror Bill of Rights” designed to protect jurors from intrusive tactics while at the same time permitting reasonable means to expose the occasional genuine case of jury misconduct.
The Legislature might regulate the circumstances under which investigators may contact jurors; prescribe what they must inform those jurors (e.g., that they are investigators, that they represent one of the parties, that they are investigating possible claims of misconduct or other grounds to overturn the *309 verdict, and that the jurors may refuse to talk to them); and require them to inform jurors from whom they seek a declaration that they might present the declaration to a court and to supply the jurors with a copy of the declaration. These are only ideas. There may be many ways to achieve a proper balance between conflicting policies. But this case strongly suggests that jurors need more protection than they currently have.
Petitioner’s application for a rehearing was denied June 30, 1999, and the opinion was modified to read as printed above.