Opposition Brief — Nichols v. Tubb

No. 92-1818 | JUN 11 1993

IN THE zi

Supreme Court of the United States

OCTOBER TERM, 1992

FRANCES and DaviD NICHOLS,

Petitioners,

versus

GRAYDEN TuBB, M.D., Tom McDONALD, M.D.

and

NORTH MISSISSIPPI MEDICAL CENTER,

Respondents.

Respondent North Mississippi Medical Center’s

Brief In Opposition To Petition For Writ of

Certiorari to the Mississippi Supreme Court

BRIEF IN OPPOSITION

*L.F. Sams, JR.

THOMAS D. Murry

DoNNA M. BARNES

MITCHELL, McNutt, THREADGILL,

SMITH & Sams, P.A.

Attorneys at Law

Post Office Box 7120

Tupelo, Mississippi 38802-7120

(601) 842-3871

Attorneys for Respondent

North Mississippi Medical Center

*Counsel of Record

oleae

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Whether the first or fourteenth amendments to the

United States Constitution requires that a trial court

permit an attorney in any case unrestricted discretion

to interview members of a jury panel post-verdict

without judicial oversight or supervision.

TABLE OF CONTENTS

Page

OPINIONS AND ORDERS BELOW ....................c0eee0 1

FUSE IES cviniesceessrsennntinniebiibnieanaiiaabiaaiehammmbiaaiaata 2

RAS epeeeRIN Ee GP Tete. GARIIEe nccsesernnmmsseaenen 3

REASONS FOR DENYING THE WRIT ..................... 9

A. The Petition for Writ of Certiorari is

CRGIIGIT ...cn.esssunenienstionsinneidnnnabianlaamamaiunienes 9

B. Federal Claims, Raised for First Time on

Petition for Rehearing, Were Not “Specially

Set Up or Claimed” and Provided Mississippi

Supreme Court Adequate and Independent

State Grounds for Denying Petition for

NT EN mm CN REST HUN es 11

C. The Petition for Writ of Certiorari is With-

OEE TDETE ovescencssvsessnsomvsiinantenseanniaaalag 15

CONCLUGIUIN sevecsnsssscnnessenmnenenninthaionenesenienntiaiabiannitt 26

TABLE OF AUTHORITIES

Cases Page

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S.

a iran cid ccanannensnneesinatbennsabncdnne 14

Big John, B.V. v. Indian Head Grain Co., 718 F.2d

IEE, IED risenasanbehceunaseonsensesstassenosesace 16,20

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

TTI Uaacancudlini sh sdnbaunnndtinserctenthteinavanstacees 10

Cox v. New Hampshire, 312 U.S. 569 (1941) ........ 19

Elisovsky v. State, 592 P.2d 1221 (Alaska 1979),

modifying Irving v. Bullock, 549 P.2d 1184

Tee i ca cs assnkenebeebane 22

Forbes v. State Council of Virginia, 216 U.S. 396

Ratti arduital uaa tandakaprsbenanbedicnibenihinaeneens 12

Gagliano v. Ford Motor Co., 551 F.Supp. 1077

II III Savi sicchstinabtndn-canbousssncanentnedabedosennes 16,18-20

Godchaux Co. v. Estopinal, 251 U.S. 179 (1919) ... 11

Haeberle v. Texas International Airlines, 739 F.2d

SIE | IEE snicssccassncsscxanesenenasseeseeconcece 21-22

Hanson v. Denckla, 357 U.S. 235 (1958) ............... 12

Hathorn v. Lovorn, 457 U.S. 255 (1982) ............... 13

Henry v. Mississippi, 379 U.S. 443 (1965) ............ 12

Herndon v. Georgia, 295 U.S. 441 (1985) .............. 12

Irving v. Bullock, 549 P.2d 1184 (Alaska 1976),

modified, Elisovsky v. State, 592 P.2d 1221

ESE EEE a 22

Jackson v. Denno, 378 U.S. 368 (1964), overruling

on other grounds Stein v. New York, 346 U.S.

IIIT Tit iainedieccdeeebnepensnntensnsntavncescndessos’s 15

King v. United States, 576 F.2d 432 (2nd Cir.), cert.

denied, 439 U.S. 850 (1978) ...........cccccccccsssseees 16,23

Konigsberg v. State Bar of California, 366 U.S. 36

iT tial id iain eidaaineaatunasdiiininasancnseenatonnessanees 19

Lawson v. State, 573 So.2d 684 (Miss. 1990) ........ 5

el

iv

Table of Authorities Continued

Page

Madruga v. Superior Court, 346 U.S. 556 (1954). 10-11

Mahoney v. Vondergritt, 9388 F.2d 1490 (1st Cir.

1991), cert. denied, 112 S.Ct. 1195 (1992) ...... 23

Maldonado v. Missouri Pacific Railway Co., 798

F.2d 764 (5th Cir. 1986), cert. denied, 480 U.S.

Se TD cana caceiancotdisiaenconsts Mindietauataniansineionnnian 20,23

McDonald v. Pless, 238 U.S. 264 (1915) ............. 15,19,22

Michigan v. Tyler, 4386 U.S. 499 (1978) ................ 12

Miller v. United States, 403 F.2d 77 (2nd Cir. 1968),

modified on other grounds, 411 F.2d 825

REACTS Ry ARES TE OR CO 8 oan 17

Mississippi Power & Light Co. v. Moore, 487 U.S.

SE TIIIIIID escslasisclaniisieiade cnleeahheniencaannnibuiniiaadsantanaeites 10

Missouri v. Jenkins, 495 U.S. 33 (1990) ............... 9

MST, Inc. v. Mississippi Chemical Corp., 610 So.2d

SE SL I satiaithcietiincnlelghalinielsndcs Secsnamasaiaieiominia 12-13

Neron v. Tierney, 841 F.2d 1197 (1st Cir.), cert.

denied, 488 U.S. 832 (1988) ..............ccccsccces 20,23-25

Nichols v. Tubb, 609 So.2d 377 (Miss. 1992) ......... 2

O’Rear v. Fruehauf Corp., 554 F.2d 1304 (5th Cir.

REPEAT. <ispicneabseecddabieeasuaizia aba cbaeenacanend itialaaaacte ilies 16,23

Olberg v. Minneapolis Gas Co., 291 Minn. 334, 191

a Ge ST ED cicrvisichincmecnmnimndieienmencesneets 22

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ......... 21

Remmer v. United States, 347 U.S. 227 (1954) ..... 23

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

IEEE is csscivsedpsondeessAdassapeuialichtsnatashatbelaseatocniennnderapsaiabseisadinitaicaas 11-12

Smith v. Phillips, 455 U.S. 209 (1982) .................. 23

Stein v. New York, 346 U.S. 156 (1953), overruled

on other grounds, Jackson v. Denno, 378 U.S.

ED CINIETEET ‘cicaisttonsinnnicanneadipnieiseasiatiinambadideianibbedeiitineenis 15,22

Street v. New York, 394 U.S. 576 (1969) .............. 14

a .

Table of Authorities Continued

Page

Tanner v. United States, 483 U.S. 107

ERENT scbcinciidichcsivadecmemunaniiienassnabieiaicndendinn 15,19,22,26

Tasin v. Sifco Industries, Inc., 50 Ohio St.3d 102,

Bis | ge eee 19

United States v. Abcasis, 811 F.Supp. 828 (E.D.N.Y.

RITE | scckecavassinciniatnnnitapsaviccindiciasiadinaiiiaiaidiamas 23

United States v. Calbas, 821 F.2d 887 (2nd Cir.

1987), cert. denied, 485 U.S. 937 (1988) ........ 17

United States v. Cuthel, 903 F.2d 1381 (11th Cir.

PIED. <uincinesecninninniniessamnansbalininiaciieamiaaudiiaiiamaie 23

United States v. Gravely, 840 F.2d 1156 (4th Cir.

TUTTI scisonssiosinecassieidinieaiasaabtiaadiiaindieaasibaaaaabauiiaaaiaaiinaain 23

United States v. Griek, 920 F.2d 840 (11th Cir.

ITED \euiéescnnsncvncuncuiipsinasamsealiaiainasaaanatameadiaisitaited 19-20

United States v. Hooshmand, 931 F.2d 725 (11th

Cai. TIBIMIED <onesssoiecussastunsninsssanstcalnalipieanabealansineasiaaiiala dies 20

United States v. Ianniello, 866 F.2d 540 (2nd Cir.

BEIT wescsnecviesiecasiuniiiennnaaieiasinialaimiddaiaasnuiai tame 16,23

United States v. Moon, 718 F.2d 1210 (2nd Cir.

1983), cert. denied, 466 U.S. 971 (1984) ........ 23-24

United States v. Moten, 582 F.2d 654 (2nd Cir.

RUPP ssucisicistinntinenanleninbeiaddiadilicolanibiaammaiaadnes 17

United States v. Narciso, 446 F.Supp. 252 (E.D.

IGA “RIT ED scenussscanssneunsiemiasnbannianddeadiimeiadinnionsain 22

United States v. Parker, 549 F.2d 998 (5th Cir.

SPEED: ccnsscrssnresancsieaiaiaeeedisasnammemiaadibnusiiaien 24

United States v. Riley, 544 F.2d 237 (5th Cir. 1976),

cert. denied, 430 U.S. 932 (1977) ..............0000 23-24

United States v. Sanchez, 380 F.Supp. 1260 (N.D.

Tex. 1973), aff'd, 508 F.2d 388 (5th Cir.), cert.

Gemmned, GBB UB. GET CERT vscecnvcccencesnsessecensone 22

United States v. Yonn, 702 F.2d 1341 (11th Cir.),

cert. denied, 464 U.S. 917 (1983) ...............002. 23

Webb v. Webb, 451 U.S. 493 (1981) ...................000. 11,14

a

Table of Authorities Continued

Page

Wilkerson v. Amco Corp., 703 F.2d 184 (5th Cir.

SIT ‘hii isschpdlanibsoeaacnanicaidiniadancinetiineimiaimalenaie 16,23

Constitutional Provisions

Se INE, F ccictsnctvnnsiesecsasinesonts i,9,12,14,18-20,22

ee, MNO, WE cascctncessscavsusdebncnanusedemminablas 6,8

RP GEE, GERGINE. BEV csccccccnssseveenesssan i,9,12,14,18,20-21

ee I, IG, Fb scneesesanvesnnconssasstscssseniscsdneneanentes 5

Statutory Provisions

SES AME OE, RUPE seirnssncnsceenicecdgsnnreesnsennsperninminsesionsnenn 2,9-11

SE: AEE, Aisepnideiedeimnsminhebesnessdidasiveeetananenneton’ 2,9

Fed. Rule of Appellate Procedure 40 ................006. 13

Fed. Rule of Evidence 606(b) .................ccceeeceeeeees 6,18-20

Miss. Rule of Evidence 606(b) ...............cccsssssseeeeees 6

Miss. Supreme Court Rule 21 .........ccceceeeeeeeeeeees 2,7

Miss. Supreme Court Rule 40 ..................csseseseeees 9-10,13

Miscellaneous

Munford, Luther T., Mississippi Supreme Court

ME © Aceh CRUPED anctesstecemicicsseniatonntatianenest 13

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

No. 92-1818

FRANCES and DAvip NICHOLS,

Petitioners,

versus

GRAYDEN TuBB, M.D., Tom McDONALD, M.D.

and

NORTH MISSISSIPPI MEDICAL CENTER,

Respondents.

Respondent North Mississippi Medical Center’ re-

spectfully requests that this Court deny the Petition

for Writ of Certiorari to review the Mississippi

Supreme Court’s Denial of Petition for Rehearing of

Petition for Extraordinary Writ.

OPINIONS AND ORDERS BELOW

The June 7, 1988, order of the Circuit Court of

Lee County, Mississippi, denying petitioners’ ex parte

motion to the court for leave to interview jurors is

unreported and is substantially reproduced in the

Petition for Writ of Certiorari at 9-10. The August

1, 1990, decision of the Mississippi Supreme Court

denying petitioners’ Statement of Facts treated as a

1 North Mississippi Medical Center, Inc., is a Delaware not-

for-profit corporation wholly owned by North Mississippi Health

Services, Inc., a Delaware corporation. North Mississippi Medical

Center, Inc., has no subsidiary companies.

Petition for Extraordinary Relief pursuant to Miss.

Sup. Ct. Rule 21 is unreported and is reproduced in

App. A, la-2a. The August 19, 1992, opinion of the

Mississippi Supreme Court affirming the judgment of

the Lee County Circuit Court on the direct appeal is

reported at 609 So.2d 377 and is reproduced in the

Supplemental Appendix. The December 31, 1992, or-

der denying petitioners’ petition for rehearing, grant-

ing petitioners’ motions for leave to supplement

petition for rehearing upon newly discovered infor-

mation and for leave to further supplement petition

for rehearing upon newly discovered information and

denying respondents’ motion to strike petition for re-

hearing and supplementations thereto is unreported

and is substantially reproduced in the Petition for

Writ of Certiorari at 10.

JURISDICTION

The United States Supreme Court has no jurisdic-

tion under 28 U.S.C. § 1257 to review the subject

decisions of the Mississippi Supreme Court. The Mis-

sissippi Supreme Court’s decision respecting any issue

of alleged improper extraneous influence upon the jury

was final on August 1, 1990, and, therefore, the

Petition for Writ of Certiorari is untimely under 28

U.S.C. § 2101(c). Additionally, the federal questions,

raised for the first time on petition for rehearing,

were not “specially set up or claimed” as required

by 28 U.S.C. § 1257 and were presented in violation

of Mississippi Supreme Court rules. The Mississippi

Supreme Court, therefore, had adequate and inde-

pendent state grounds for denying the petition for

rehearing.

STATEMENT OF THE CASE

The petitioners’ medical malpractice action against

respondents Dr. Grayden Tubb, Dr. Thomas Mc-

Donald and North Mississippi Medical Center (‘‘the

Medical Center’’) was tried in the Circuit Court of

Lee County, Mississippi. During an afternoon break

on the seventh day of trial, January 27, 1988, a casual

exchange took place between two nurses employed by

respondent Medical Center and a male juror at the

water fountain outside the courtroom in the presence

of several other bystanders.? The incident was re-

ported to the trial judge, and the juror was excused

in order to avoid any appearance of impropriety. [R.

501-06; T. 1383-85].*

The trial continued with an alternate juror replac-

ing the excused juror. [T. 1384]. Prior to the reading

The male juror, Hankins, initiated conversation with one of

the nurses, Hunter, by remarking on the temperature and the

fact that he was thirsty. Hunter recognized him as the father

of a boy who had played ‘‘T-ball” with her son many years ago.

The second nurse, Harris, approached, and Hankins recalled

coaching Harris’s son in “T-ball’’ years previously. A light ex-

change followed until Sanders, an investigator employed by Wil-

liam S. Lawson, counsel for petitioners, approached the nurses

and advised them that they should not speak to a juror even

at the water fountain. The conversation, which involved no facts

remotely related to the case, ceased almost immediately.

[R. 501-06].

3In excusing the juror, the trial judge stated “I am of the

opinion, having asked counsel for that Defendant to confer with

them, that the conversation was completely innocent. I don’t

want to imply that there was any improper words said. ...

There, I don’t think as I stated was any misconduct, but quite

surely there is the appearance that the court is concerned with.”

[T. 1382-85]. Petitioners did not move for mistrial.

a

of the verdict, the trial judge read and entered an

order prohibiting the parties, their counsel, and other

persons from

communicat{ing] with the jury or any mem-

ber thereof regarding the verdict. Provided,

however, that if any attorney believes in good

faith that the verdict may be subject to legal

challenge such attorney may apply ex parte

to the Court for permission to interview one

or more members of the jury regarding any

fact or circumstance claimed to support such

legal challenge. If satisfied that good cause

exists, the Court may grant permission for

the attorney to make the requested com-

munication and shall prescribe the terms and

conditions under which the same may be con-

ducted.

[T. 2011-12; R. 596].

The jury returned verdicts in favor of each of the

respondents. [T. 2012-13]. Two days later, one of the

petitioners’ expert witnesses, Dr. William Gary, con-

tacted alternate juror Denham and questioned her

concerning the verdict. During their conversation,

Denham allegedly asked Dr. Gary whether he knew

petitioner Frances Nichols was receiving $7,000 from

workers’ compensation each month; Denham did not

indicate how or when she gained any such informa-

‘The court advised the jury that “this in no wise is intended

to infringe upon your right of free speech. Feel free if you

desire to communicate with anybody you want to communicate

with. But I want you to initiate that communication and if you

don’t want to talk you don’t have to. But if you want to, you

are welcome to.” [T. 2012].

cc cecil

tion.’ Dr. Gary reported his conversation to Lawson.

Lawson then telephoned alternate juror Denham and

juror Stasko, falsely representing to them that he had

the trial judge’s permission to discuss the case with

them. [Exhibit 1 to “Statement of the Facts’ treated

as Petition for Extraordinary Writ in the Mississippi

Supreme Court (hereinafter referred to as ‘Petition

for Extraordinary Writ’’); R. 628, 631]. Alternate ju-

ror Denham refused to talk to Lawson without speak-

ing with the trial judge first, and juror Stasko denied

having any information concerning insurance benefits

during the deliberations. Stasko stated that he did

not learn of insurance benefits until after the jury

verdict had been rendered. [R. 628-30, 632 and Ex-

hibit 2 to Petition for Extraordinary Writ].®

Thereafter, petitioners filed an ex parte motion to

interview jurors “‘before the court, individually, on

such terms as the court prescribes.” [R. 614-16]. On

May 18, 1988, the trial court conducted a hearing on

the motion. [T. 2018-51]. In addition to argument,’

5 Petitioners allege that $7,000 per month was the amount not

of workers’ compensation benefits but of a joint pretrial settle-

ment offer made by various physicians, including the respondent

physicians, which petitioners refused. [Petition for Extraordinary

Writ at 1).

6 Lawson was subsequently convicted of constructive criminal

contempt for violating of the trial court’s order. That conviction

was affirmed by the Mississippi Supreme Court. See Lawson v.

State, 573 So.2d 684 (Miss. 1990) [App. B, 3a-10a]. No review

was sought from this Court.

7 Petitioners argued that if they were prohibited from com-

municating further with the jurors, there would be a “depri-

vation of a United States Constitution article six right, to wit:

‘The right of every American citizen to have his case, criminal

the court considered transcripts of Lawson’s improper

(and surreptitiously recorded) telephone contacts with

jurors Stasko and Denham, the affidavits of Sanders,

Dr. Gary, and nurses Harris and Hunter. [R. 501-06;

T. 2046-47]. On June 7, 1988, the trial court, citing

Rule 606(b) of the Mississippi Rules of Evidence,®

ruled that the evidence failed to establish ‘‘good cause

to interview jurors with a reasonable expectancy of

proving that extraneous prejudicial information was

improperly brought to the jury’s intention during the

course of its deliberations’. The court found that the

transcripts ‘‘affirmatively reflect that neither [jurors

Stasko and Denham] nor any of the other jurors who

were involved in deliberations, received extraneous

prejudicial information improperly brought to the ju-

ry’s attention ... during the course of the delibera-

tions.”’ The court denied petitioners’ motion for leave

to interview jurors. [R. 626-27, Petition for Writ of

Certiorari at 9-10].

Petitioners filed their notice of appeal to the Mis-

sissippi Supreme Court on August 22, 1988, but did

not raise in either the statement of issues or any

brief on the direct appeal an issue of extraneous prej-

udicial information’s being improperly brought to the

jury’s attention. [R. 944].

or civil, tried by an impartial jury.’”’ [T. 2030-31]. Petitioners

later amended their argument to be premised upon the “sixth

amendment, United States Constitution ... to maintain the in-

tegrity of our jury system to keep jurors segregated.” [T. 2039].

® Rule 606(b) of the Mississippi Rules of Evidence is practically

identical to Rule 606(b) of the Federal Rules of Evidence, pro-

hibiting inquiry into the mental processes of jurors but permit-

ting juror testimony ‘‘on the question whether extraneous

prejudicial information was improperly brought to the jury’s at-

tention.”” Compare Miss.R.Ev. 606(b) with Fed.R.Ev. 606(b).

After all of the briefs on direct appeal had been

filed in the Mississippi Supreme Court, petitioners

filed a document entitled “Statement of the Facts’

which the court treated as a Petition for Extraordi-

nary Writ pursuant to Rule 21 of the Mississippi

Supreme Court Rules. Far from challenging the con-

stitutionality of the trial court’s order prohibiting ju-

ror contact, the Petition for Extraordinary Writ

requested that the Mississippi Supreme Court con-

sider two new affidavits petitioners had obtained® and

grant petitioners a new trial or in the alternative,

permission pursuant to the trial court’s order to in-

terview one or more members of the jury. [Petition

for Extraordinary Writ at 5-8]. The affidavits did not

support petitioners’ claim that the jury was subjected

to extraneous prejudicial influence. At most, the af-

fidavits indicated that some jurors might have spec-

ulated among themselves that the petitioners were

receiving medical benefits which were “obviously”

being provided by some unidentified source of insur-

ance. Neither affidavit indicated the alleged source of

the supposed information regarding insurance cover-

age. [Exhibits 8 and 9 to Petition for Extraordinary

Writ].?°

*The two new affidavits, apparently obtained in continued

willful violation of the trial court’s order, were from juror Bates

(the one juror who had voted to hold respondent Medical Center

liable) and juror Hill (who had been excused for sleeping during

the court proceedings). [Compare Exhibits 8 and 9 to Petition

for Extraordinary Writ with T. 2015-16; 1678-80].

10 If indeed the jury did engage in speculation about whether

petitioners were receiving some insurance benefits, there is ab-

solutely no suggestion from any affian: that such speculation

originated from extraneous information provided to the jury. The

jury did not have to go beyond the evidence presented by the

On August 1, 1990, the Mississippi Supreme Court

denied the Petition for Extraordinary Writ without

comment. [App. A, 1la-2a].

The Mississippi Supreme Court’s opinion on the di-

rect appeal, rendered August 19, 1992, did not ad-

dress any issue of alleged improper extraneous

influence upon the jury. [See Supplemental Appen-

dix]... On September 8, 1992, petitioners filed a

petition for rehearing requesting, inter alia, that the

Mississippi Supreme Court “reconsider its ruling de-

nying [petitioners’] Petition for Extraordinary Re-

lief’. Although the petition for rehearing claimed

various violations ‘“‘of the concept of a fair trial guar-

anteed by both the State and Federal constitutions,”’

it did not challenge the authority of the trial court

to issue an order restricting juror contact in the first

instance. [Petition for Rehearing at 13, 19-23].

On October 5, 1992, petitioners filed a motion for

leave to further supplement petition for rehearing

upon newly discovered information and attempted to

assert a constitutional argument based on the “Sixth

Amendment guarantee of trial by jury requirfing] a

jury verdict to be based upon evidence produced at

trial.’’ [Motion for Leave to Further Supplement

petitioners themselves to observe that plaintiff had been receiv-

ing insurance benefits. [See T. 348; Exhibits P-2, P-4.] Addi-

tionally, the figure of $7,000 per month was presented to the

jury by petitioners as the amount of petitioner Frances Nichols’

continuing monthly medical expense. [T. 1087].

1 The court stated there to be “‘only two issues raised on this

appeal, the first being that reversible error was committed in

allowing testimony that was not revealed in pretrial discovery

... and the second being the erroneous refusal of instructions

requested by the plaintiffs.’’ [Supplemental Appendix at 9).

Petition for Rehearing at 8]. On October 9, 1992,

petitioners filed a statement of further authorities in

support of “proposition III” of their petition for re-

hearing, raising for the first time first and fourteenth

amendment challenges to the trial court’s order.

[Appellants’ Statement of Further Authorities in Sup-

port of ‘Proposition III’’ of their Petition for Re-

hearing’ at 2-3]. |

Respondent Medical Center challenged the petition

for rehearing and supplementations thereto as being

unauthorized, untimely, excessive in length, interject-

ing issues not raised on direct appeal and for failure

to specify any “point of law or fact that the [Missis-

sippi Supreme] Court has allegedly overlooked or mis-

apprehended”’ as required by Rule 40 of the

Mississippi Rules of Supreme Court. [Motion to Strike

Petition for Rehearing and Supplementations Thereto].

On December 31, 1992, the Mississippi Supreme

Court, without comment, granted the petitioners’ mo-

tions for leave to supplement their petition for re-

hearing, and to further supplement their petition for

rehearing, but denied the petition itself. [Petition for

Writ of Certiorari at 10].

REASONS FOR DENYING THE WRIT

A. The Petition for Writ of Certiorari is Untimely

Any petition for writ of certiorari must be filed

within ninety (90) days after entry of the final judg-

ment or decree. 28 U.S.C. §§ 1257(a), 2101(c). This

time limit is mandatory and jurisdictional. Missouri

v. Jenkins, 495 U.S. 33, 45 (1990). In the instant case,

no issue concerning alleged improper extraneous in-

fluence upon the jury was raised on the direct appeal,

a

10

but only by Petition for Extraordinary Writ. That

petition was denied by the Mississippi Supreme Court

on August 1, 1990;!2 the decision of the Mississippi

Supreme Court regarding extraneous influence upon

the jury was then final, and the issues pending on

direct appeal (jury instructions and alleged discovery

violations) could not remotely give rise to a federal

question that would require review by this Court. See

Coz Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-

80 (1975) (decision on federal issue final for purposes

of section 1257 where federal issue will survive re-

gardless of outcome of further state proceedings which

could not remotely give rise to additional federal ques-.

tion); see also Mississippi Power & Light Co. v. Moore,

487 U.S. 354, 370 n.11 (1988) (critical federal question

already answered by state supreme court and ripe for

review although further proceedings to be held on

remand); Madruga v. Superior Court, 346 U.S. 556,

‘2 Petitioners did not file a timely petition for rehearing fol-

lowing denial of the extraordinary writ. Rule 40 of the Missis-

sippi Supreme Court Rules requires that a petition for rehearing

“be filed within fourteen (14) days after a decision is handed

down on the merits of a case or on a motion’. Miss.S.Ct.R.

40(a). Although Lawson acknowledged that the petition for re-

hearing should have been ‘“‘promptly filed” following the August

1, 1990 dismissal, he alleged that he never received a copy.

[Motion for Leave to Further Supplement Petition for Rehearing

Upon Newly Discovered Information at 7]. The Mississippi

Supreme Court’s order and notice denying the petition disclosed,

however, that both of the petitioners’ counsel before the Mis-

sissippi Supreme Court (Lawson and Wayne Drinkwater) were

recipients of the order with the addresses shown as provided to

the court by counsel on the briefs for the direct appeal. Drink-

water, lead counsel for petitioners before the Mississippi Supreme

Court, made no representation to the Mississippi Supreme Court

that he did not receive the August 1, 1990 order.

11

557 n.1 (1954) (state supreme court judgment finally

disposing of writ of prohibition is final judgment re-

viewable under section 1257). The Petition for Writ

of Certiorari, filed over two years later, is untimely,

and this Court is without jurisdiction.

B. Federal Claims, Raised on Petition for Rehearing, Were

Not “Specially Set Up or Claimed’’ and Provided Mis-

sissippi Supreme Court Adequate and Independent State

Grounds for Denying Petition for Rehearing

“It is a long-settled rule that the jurisdiction of this

Court to re-examine the final judgment of a state

court can arise only if the record as a whole shows

either expressly or by clear implication that the fed-

eral claim was adequately presented in the state sys-

tem.’” Webb v. Webb, 451 U.S. 493, 496-97 (1981). The

federal right must have been “specially set up or

claimed’”’ in the court below. 28 U.S.C. § 1257. In

Godchaux Co. v. Estopinal, 251 U.S. 179 (1919), this

Court, citing the predecessor to § 1257, explained:

[I]n order to give us jurisdiction to review

the judgment of a state court upon writ of

error, the essential Federal question must

have been especially set up there at the

proper time and in the proper manner; and,

further, that if first presented in a petition

for rehearing, it comes too late unless the

court actually entertains the petition and

passes upon the point.

251 U.S. at 181; see also Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 128 (1945) (questions pre-

sented on petition for rehearing ‘“‘come too late for

consideration here, unless the State court exerted its

jurisdiction in such a way that the case could have

been brought here had the questions been raised prior

iil

12

to the original disposition’’); Hanson v. Denckla, 357

U.S. 235, 243-44 (1958) (question raised on petition

for rehearing ‘‘not seasonably presented’’); Herndon

v. Georgia, 295 U.S. 441, 443 (1935) (question raised

on petition for rehearing ‘‘comes too late, unless the

court actually entertains the question and decides it’’).

In Forbes v. State Council of Virginia, 216 U.S. 396

(1910), this Court, after reiterating the general rule,

held that a state court’s recitation of “‘mature con-

sideration”’ of the petition for rehearing was insuf-

ficient to show that the federal question was

“considered and passed upon”. 216 U.S. at 399. In

the instant case, no federal question was properly

raised in the Mississippi Supreme Court. Petitioners’

alleged first and fourteenth amendment rights to in-

terview jurors without leave of court were not “‘spe-

cially set up or claimed’ below, and this Court is

without jurisdiction.

Additionally, “[flailure to present a federal question

in conformance with state procedure constitutes an

adequate and independent ground of decision barring

review in this Court, so long as the State has a le-

gitimate interest in enforcing its procedural rule.”

Michigan v. Tyler, 486 U.S. 499, 513 n.7 (1978);

Henry v. Mississipm, 379 U.S. 443, 447-48 (1965). In

Mississippi, arguments not set forth as an issue in

the original briefs of the parties are waived. MST,

Inc. v. Mississippi Chemical Corp., 610 So.2d 299,

305 (Miss. 1992). A party may not, therefore, raise

a new issue on petition for rehearing. The Mississippi

Supreme Court recently explained:

The purpose of a petition for rehearing is

not to allow counsel to add assignments of

error which, for whatever reason, were not

13

included in the appellant’s original brief to

this court. Judicial economy dictates that we

consider only those assignments of error set

forth in the original brief. The purpose of

the petition for rehearing is to allow the par-

ties to point out “the points of law or fact

which in the opinion of the petitioner this

Court has overlooked or misapprehended .. .

.”’ Miss. Sup. Ct. Rules 40. We cannot mis-

apprehend or overlook that which is not pre-

sented for our review.

MST, 610 So.2d at 304."

In the instant case, petitioners’ Petition for Ex-

traordinary Writ before the Mississippi Supreme Court

did not challenge the trial court’s order prohibiting

juror contact, but merely requested that the Missis-

sippi Supreme Court accept additional evidence and

overrule the trial court’s discretionary ruling. No con-

stitutional question was raised in the Petition for Ex-

traordinary Writ. The petition for rehearing following

the decision on direct appeal, some two years after

13 The MST decision answers any question raised in Hathorn

v. Lovorn, 457 U.S. 255, 263 & n.13 (1982), concerning Missis-

sippi’s continued prohibition against presentation of new issues

in petitions for rehearing. Following Hathorn, the Mississippi

Supreme Court adopted new rules of supreme court procedure

to replace the prior rules which “‘had evolved haphazardly’. In

an “effort to foster uniformity between state and federal prac-

tice,” the new rules follow the Federal Rules of Appellate Pro-

cedure in most respects. See Munford, Luther T., Mississipy

Supreme Court Practice, § 1.5 (1991). Rule 40 of the Mississippi

Rules of the Supreme Court respecting content of petitions for

rehearing, explained in MST, is patterned after Rule 40 of the

Federal Rules of Appellate Procedure. See Miss. S. Ct. R.40, at

comment.

14

the denial of the Petition for Extraordinary Writ,

raised only a general question regarding the consti-

tutionality of the trial court proceedings.‘ It was only

upon a third supplementation to the petition for re-

hearing that the petitioners, acknowledging the de-

ficiency of the petition for rehearing, sought to invoke

the protections of the first and fourteenth amend-

ments to the United States Constitution and to chal-

lenge the trial court’s authority to restrict post-verdict

juror contact.

This Court “thas frequently stated that when ‘the

highest state court has failed to pass upon a federal

question, it will be assumed. that the omission was

due to want of proper presentation in the state courts,

unless the aggrieved party in this Court can affirm-

atively show the contrary.’ ’’ Webb, 451 U.S. at 495-

96 (quoting Street v. New York, 394 U.S. 576, 582

(1969)). In the instant case, the specific constitutional

provisions petitioners would invoke before this Court

were not presented in the state court until supple-

mentation to petition for rehearing, which occurred

more than two years after the decision denying the

Petition for Extraordinary Writ. The Mississippi

Supreme Court is presumed to have denied the

petition for rehearing due to the petitioners’ failure

to comply with state procedural rules governing tim-

ing and content of petition for rehearing. The denial

of the petition for rehearing, therefore, rests upon

adequate and independent state grounds and is not

subject to review by this Court.

4 See Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71,

77 (1988) (party may not preserve constitutional challenge by

generally invoking the constitution in state court).

15

C. The Petition for Writ of Certiorari is Without Merit

This Court has long recognized the necessity of

shielding jurors from post-verdict harassment:

[A]ll verdicts could be, and many would be,

followed by an inquiry in the hope of dis-

covering something which might invalidate

the finding. Jurors would be harassed and

beset by the defeated party in an effort to

secure from them evidence of facts which

might establish misconduct sufficient to set

aside a verdict.

McDonald v. Pless, 238 U.S. 264, 267 (1915); see also

Stein v. New York, 346 U.S. 156, 178 (1953) overruled

on other grounds, Jackson v. Denno, 378 U.S. 368,

391 (1964) (courts have not “favored any public or

private post-trial inquisition of jurors as to how they

reasoned, lest it operate to intimidate, beset and har-

ass them’’). In Tanner v. United States, 483 U.S. 107

(1987), this Court stated, ‘There is little doubt that

post-verdict investigation into juror misconduct would

in some instances lead to the invalidation of verdicts

reached after irresponsible or improper juror behav-

ior. It is not at all clear, however, that the jury sys-

tem could survive such efforts to perfect it.’”’ Tanner,

483 U.S. at 120.

Lower federal courts have expanded upon the ‘‘evil

consequences” which would result from post-verdict

inquiries: ‘‘subjecting juries to harassment, inhibiting

‘6 In Tanner, counsel had secured a juror affidavit in clear

violation of the district court’s order and local rule against juror

interviews. This Court condemned the practice, stating that ‘‘on

this basis alone the District Court would have been acting within

its discretion in disregarding the affidavit.”” 483 U.S. at 126.

ale

16

juryroom deliberation, burdening courts with merit-

less applications, increasing temptation for jury tamp-

ering and creating uncertainty in jury verdicts.’’ See

United States v. Ianniello, 866 F.2d 540, 543 (2nd

Cir. 1989); see also King v. United States, 576 F.2d

432, 438 (2nd Cir.), cert. denied, 439 U.S. 850 (1978);

Gagliano v. Ford Motor Co., 551 F.Supp. 1077, 1079

(D.Kan. 1982). Requiring a party

to make a showing of likely misconduct be-

fore allowing such an inquiry: protect[s] the

jury from post-verdict misconduct and the

courts from time-consuming and futile pro-

ceedings; reduc{es] the ‘‘chances and temp-

tations” for tampering with the jury; and

increas[es] the certainty of civil verdicts. We

continue to decline to “denigrate jury trials

by afterwards ransacking the jurors in search

of some ground ... for a new trial” unless

a preliminary showing is made.

Wilkerson v. Amco Corp., 703 F.2d 184, 185-86 (5th

Cir. 1983) (quoting O’Rear v. Fruehauf Corp., 554

F.2d 1304, 1310 & n.4 (5th Cir. 1977)) (citations omit-

ted); Big John, B.V. v. Indian Head Grain Co., 718

F.2d 148, 150 (5th Cir. 1983). The United States Court

of Appeals for the Second Circuit has recognized:

A serious danger exists that, in the absence

of supervision by the court, some jurors, es-

pecially those who were unenthusiastic about

the verdict or have grievances against fellow

jurors, would be led into imagining sinister

happenings which simply did not occur or into

saying things which, although inadmissible,

would be included in motion papers and would

17

serve only to decrease public confidence in

verdicts.

United States v. Moten, 582 F.2d 654, 665 (2nd Cir.

1978). Lower courts have not only the power but also

“the duty to supervise and closely control [post-ver-

dict jury] inquiries.’’ United States v. Calbas, 821 F.2d

887, 896 (2nd Cir. 1987), cert. denied, 485 U.S. 937

(1988); Moten, 582 F.2d at 665; Miller v. Umited

States, 403 F.2d 77, 84 (2nd Cir. 1968), modifted on

other grounds, 411 F.2d 825 (1969).%®

The instant case is a classic example of the neces-

sity of judicial supervision and oversight of post-ver-

dict jury inquiries. The two surreptitiously recorded

telephone conversations between petitioners’ counsel

and jurors Stasko and Denham revealed that counsel

lied to the jurors, attempted to play on their sym-

pathy for petitioners, and attempted to twist the

meaning of their statements when those statements

did not confirm counsel’s suppositions. [R. 631-37 and

Exhibit 2 to Petition for Extraordinary Writ; App.

B, 3a-10a]. Additionally, the only two affidavits

counsel obtained were from two disgruntled jurors,

‘6 Contrary to the assertions of petitioners that any state in-

terest can be met by “‘simply ... providing that counsel’s ques-

tioning of the jury would be limited to matters of whether there

was any extraneous matter brought to their attention’, the

United States Court of Appeals for the Second Circuit in Miller,

recognized that ‘‘the line between proper and improper inquiry

is not easy to draw’ and suggested that the trial court “may

well find it better that he control any questioning’. 403 F.2d

at 82. In the instant case, counsel’s questioning of juror Stasko

actually attempted to elicit the content of juror deliberations,

and the affidavits of jurors Hill and Bates likewise purportedly

reveal the content of juror discussion and deliberation.

18

one of whom had been dismissed for sleeping and the

other who had been the only juror who voted in favor

of the petitioners.

The amount of precious judicial resources which has

been wasted on the unfounded juror issues is obvious.

At the trial court hearing, counsel for petitioners re-

vealed that he had tape recordings of his conversa-

tions with jurors Denham and Stasko. On reviewing

these recordings, the trial court found no evidence

sufficient to raise a prima facie case of improper

extraneous influence before the jury. Juror Stasko

stated that he had no knowledge of the alleged work-

ers’ compensation benefits until after the verdict had

been rendered. The additional affidavits included with

the Petition for Extraordinary Writ did nothing more

than suggest that insurance had been discussed by

the jurors, and none of the statements went beyond

the evidence presented to the jury in the courtroom

or what the jurors could observe every day at trial.

Local rules of court requiring a party and his

counsel to show ‘‘just cause’ as a precondition to

post-verdict jury interviews do not violate the first

or fourteenth amendments to the United States Con-

stitution. In Gagliano, the United States District

Court for the District of Kansas found the plaintiff's

first amendment challenge to be “wholly conclusory

and ... not refer{ring] to authority for support.”’ The

court explained that a party’s freedom to speak with

jurors following trial ‘‘is already seriously limited by

Federal Rule of Evidence 606(b). [The] local rule only

places a ‘just cause’ precondition to conduct allowed

19

by this federal rule.’’ The court explained that the

local rule

is nothing more than a general regulation of

plaintiff's counsel’s speech in a very narrow

and limited context. It incidently limits

counsel’s speech, but is supported by a valid

governmental interest, namely the interest in

the orderly conduct of civil trials and the

finality of verdicts, and is clearly outweighed

by that interest. The rule does not violate

the United States Constitution. Konigsberg v.

State Bar of California, 366 U.S. 36 ...

(1961). It is no different in principle than a

licensing requirement prior to speech [Coz v.

New Hampshire, 312 U.S. 569 ... (1941)]....

551 F.Supp. at 1079 (brackets in original); see also

Tasin v. Sifco Industries, Inc., 50 Ohio St.3d 102, 553

N.E.2d 257, 263 (1990) (local rule prohibiting post-

trial communication with jurors without leave of court

“not an unconstitutional prior restraint on freedom

of speech’’).

Likewise, two United States Courts of Appeal have

upheld, against first amendment challenges, local rules

prohibiting juror contact except by leave of court. In

United States v. Griek, 920 F.2d 840 (11th Cir. 1991),

the United States Court of Appeals for the Eleventh

Circuit construed the local rule requirement of ‘‘good

cause” in light of Federal Rule of Evidence 606(b)

and held that ‘‘good cause under the local rule may

be shown only by satisfying the requirements of the

exception stated in the Federal Rule.” Citing Tanner,

supra, and McDonald, supra, the court of appeals

held that any first amendment right was outweighed

by the “compelling government interest” that a jury’s

deliberations not ‘“‘be exposed to public view except

by a showing of outside influence, the basis for the

20

exception in Rule 606(b).”” 920 F.2d at 842-43; see

also United States v. Hooshmand, 931 F.2d 725, 736-

37 (11th Cir. 1991) (upholding against first amend-

ment challenge local rule prohibiting juror contact ex-

cept upon showing of good cause). In Big John, the

United States Court of Appeals for the Fifth Circuit

found the first amendment challenge to the local rule

prohibiting juror contact except upon the explicit leave

of court to “‘ha[{ve] no merit.” 718 F.2d at 149.

In Neron v. Tierney, 841 F.2d 1197 (1st Cir.), cert.

denied, 488 U.S. 832 (1988), the United States Court

of Appeals for the First Circuit held that a procedural

scheme requiring a party to make a satisfactory

threshold showing of substantiality before invading

the jury’s privacy ‘‘cannot be said to be so harsh as

to offend the Constitution” and upheld the state pro-

cedure against due process challenge. 841 F.2d at

1200-01. Likewise, in Gagliano, supra, the United

States District Court for the District of Kansas upheld

the local rule requiring “‘just cause” as a precondition

to juror interviews as against a due process challenge.

The court found that ‘the present procedure of re-

quiring a motion, with supporting argument, by the

party seeking to interview the jurors, and requiring

argument in opposition provide all the process that

is due’. 551 F.Supp. at 1080; see also Maldonado v.

Missouri Pacific Railway Co., 798 F.2d 764, 770 (5th

Cir. 1986), cert. denied, 480 U.S. 932 (1987) (uphold-

ing Federal Rule of Evidence 606(b) against due proc-

ess challenge; ‘‘defendant’s right to a fair trial is not

absolute; it may be outweighed by other considera-

tions, including the jury’s right to privacy and pro-

tection from harassment’’).

21

In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a

father accused of sexual abuse of his minor daughter

subpoenaed the records of the state child welfare

agency concerning his daughter. The agency refused

to comply with the subpoena, claiming the records to

be privileged under state law. 480 U.S. at 43. The

Supreme Court of Pennsylvania determined that the

father, through his attorney, was entitled to review

the entire file to search for any useful evidence with

‘‘ ‘the eyes and the perspective of an advocate,’ who

may see relevance in places that a neutral judge would

not.” 480 U.S. at 46. On writ of certiorari, this Court

reversed, holding such disclosure riot required by the

due process clause. The Court stated that “‘[aJlthough

the eye of an advocate may be helpful to a defendant

in ferreting out information, this Court has never

held—even in the absence of a statute restricting dis-

closure—that a defendant alone may make the deter-

mination as to the materiality of the information.”

480 U.S. at 59 (citations omitted). The Court held

that the father’s interest “‘in ensuring a fair trial can

be protected fully by requiring that the [agency’s] files

be submitted only to the trial court for in camera

review.”’ 480 U.S. at 60.

In the instant case, petitioners would have this

Court declare a constitutionally protected right of lit-

igants to conduct unbridled post-verdict juror inter-

views.'” As in Ritchie, petitioners would have jury

‘7 The cases cited by petitioners as purportedly evidencing a

conflict among the lower courts as to when post-verdict juror

contact is appropriate do not support their argument in favor

of constitutional entitlement to interview jurors in any case. See

Haeberle v. Texas International Airlines, 739 F.2d 1019, 1021-

22 (5th Cir. 1984) (appellate court uniformly refuses to overturn

22

interviews conducted with ‘‘the perspective of the ad-

vocate” rather than with the protections of judicial

oversight. The danger to the jury system inherent in

such conduct has been long recognized by this Court.

See Tanner, Stein and McDonald, supra.

The Petition for Writ of Certiorari raises only a

challenge to the trial court’s authority to condition

post-verdict interviews of jurors upon a showing of

good cause. To the extent, however, petitioners’ ar-

gument implies some unarticulated inadequacy in the

denial of leave to interview jurors for purpose of obtaining evi-

dence of impropriety in deliberations unless specific evidence of

misconduct shown; distinguishing first amendment interests in

flow of information from jurors to public); United States v. Nar-

ciso, 446 F.Supp. 252, 324-25 (E.D. Mich. 1977) (American Bar

Association’s rulings on ethical considerations concerning post-

verdict juror contact ‘‘somewhat ambiguous’ —‘‘the law’’ not am-

biguous as asserted by petitioners; trial court deemed its failure

to prohibit post-verdict juror contact “perhaps short sighted’”’

and condemned the conduct of government in conducting post-

trial inquiry as ‘‘extremely ill-advised” and “‘imprudent’’); United

States v. Sanchez, 380 F.Supp. 1260, 1265-66 (N.D. Tex. 1973)

aff'd, 508 F.2d 388 (5th Cir.), cert. denied, 423 U.S. 827 (1975)

(‘disgusting practice of unbridled interrogation of jurors” not

permitted; jurors allowed to be interviewed in non-harassing

manner ‘‘where good cause appears’; no implication that counsel

is to determine existence of good cause); Irving v. Bullock, 549

P.2d 1184, 1188 n.9 (Alaska 1976), modified, Elisovsky v. State,

592 P.2d 1221 (Alaska 1979) (trial court expressly gave attorneys

permission to speak with jurors after trial; no implication that

permission was based upon constitutional right); Olberg v. Min-

neapolis Gas Co., 291 Minn. 334, 191 N.W.2d 418, 424-25 (1971)

(although trial court should be “liberal” in granting hearing with

respect to juror misconduct, attorney should not be allowed to

contact jurors in an effort to obtain information upon which to

base motion for hearing).

23

trial court hearing" or attempts to challenge the cor-

rectness of the trial court’s determination that good

cause had not been shown in the instant case, such

contentions are clearly without foundation. Although

a court must satisfactorily probe nonfrivolous charges

of jury spoilage (see Smith v. Phillips, 455 U.S. 209,

218 (1982); Remmer v. United States, 347 U.S. 227,

230 (1954); Mahoney v. Vondergritt, 938 F.2d 1490,

1493 (1st Cir. 1991), cert. denied, 112 S.Ct. 1195

(1992); Neron, 841 F.2d at 1201), the trial court has

broad discretion in determining how to investigate an

allegation of juror misconduct. See, e.g., United States

v. Cuthel, 903 F.2d 1381, 1382 (11th Cir. 1990); United

States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988);

Maldonado, 798 F.2d at 769; United States v. Moon,

718 F.2d 1210, 1235 (2nd Cir. 1983), cert. denied, 466

U.S. 971 (1984); United States v. Yonn, 702 F.2d 1341,

1344-45 (11th Cir.), cert. denied, 464 U.S. 917 (1983).

A post-verdict interrogation of the jury requires that

the requesting party show “clear, strong, substantial

and incontrovertible evidence ... that a specific, non-

speculative impropriety has occurred”. Moon, 718 F.2d

at 1234; see Cuthel, 903 F.2d at 1383 (quoting Moon);

Ianniello, 866 F.2d at 543 (quoting Moon); King, 576

F.2d at 438; United States v. Abcasis, 811 F.Supp.

828, 835-36 (E.D.N.Y. 1992) (quoting Moon); cf.

Gravely, 840 F.2d at 1159 (requesting party must

make threshold showing of improper outside influ-

ence); Wilkerson, 703 F.2d at 185 (moving party must

show ‘“‘specific instances of misconduct” before post-

verdict jury inquiry will be allowed (quoting O’Rear,

554 F.2d at 1309-10); United States v. Riley, 544 F.2d

1®The adequacy of the trial court hearing has never been

properly challenged below.

24

237, 242 (5th Cir. 1976), cert. denied, 480 U.S. 932

(1977) (specific instances of misconduct must be

shown).

When in the course of the trial court’s investigation

it becomes apparent that reasonable grounds to sus-

pect impropriety do not exist, the inquiry should end.

Neron, 841 F.2d at 1202; Moon, 718 F.2d at 1234;

United States v. Parker, 549 F.2d 998, 1000 (5th Cir.

1977). In Neron, the United States Court of Appeals

for the Second Circuit commended the trial court for

holding a prompt evidentiary hearing ‘“[djespite the

obviously speculative quality of the claim’. The trial

court, however, was justified in concluding the in-

vestigation when that presentation “failed to disclose

the slightest bit of meat on the skeleton.”’ The court

of appeals stated:

We have found no case which purports to lay

down an ironclad rule necessitating posttrial

interrogation upon demand of every juror in

every circumstance. The Constitution, as we

read it, imposes no such across-the-board re-

quirement. ... [T]here are situations where

the evidence of impropriety may be so slight

or conjectural as not to support any reason-

able inference of prejudicial bias or miscon-

duct. At this extremity ... interviewing the

juror will not significantly decrease the risk

of error. ... The need for post-verdict in-

terviewing is dubious at best, and ultimately

depends on the nature and weight of the in-

dependent evidence underbracing the claim

and on the trial justice’s sound discretion.

841 F.2d at 1202-03. The court held that the re-

questing party was “‘obliged to make a more cogent

25

showing before it became constitutionally imperative

to recall [a] juror.”’ The court stated that the

“‘petitioner’s asseveration, when unrolled, embodied

evidence so sparse, a pyramiding of inferences so

fragile, a thesis so speculative, as to envelop the bias/

misconduct charge in a miasma of doubt. Asthenic to

begin with, petitioner’s claim was weakened rather

than strengthened by his presentation at the hear-

ing.”’ 841 F.2d at 1203.

Likewise, in the instant case, petitioners have never

presented anything but conjecture, speculation and

surmise to support their allegation of misconduct. As

in Neron, their “pyramiding of inferences’ is indeed

“‘fragile.’’ Petitioners speculate that the two off-duty

nurses, employed by respondent Medical Center,

somehow learned of the content of supposed confi-

dential settlement negotiations. between petitioners

and respondent physicians, and, during the course of

the short, casual water fountain conversation in the

presence of others, managed to convey the substance

of the supposed settlement offer to juror Hankins as

the amount of workers’ compensation benefits being

received. Juror Hankins in turn, petitioners surmise,

informed fellow jurors of this compensation prior to

his being excused from the jury. At the trial court

hearing, the court was apprised that counsel for

petitioners had actually tape recorded the telephone

conversations on which petitioners’ motion to inter-

view jurors was based. Upon hearing juror Stasko

dispute petitioners’ contentions, the trial court rea-

sonably determined there to be no evidence of extra-

neous influence so as to justify further post-verdict

investigation either by court or by counsel. The trial

court afforded petitioners sufficient hearing and did

26

not abuse its discretion in determining that “just

cause” had not been shown.

CONCLUSION

Petitioners would have this Court set counsel loose

upon jurors whenever counsel, in his sole discretion,

determines ‘‘just cause’”’ to be present; “i]t is not at

all clear ... that the jury system could survive’. Tan-

ner, supra. The Petition for Writ of Certiorari is

without merit, and, even if this Court had jurisdiction

to consider the petition, and it is respectfully sub-

mitted that the Court does not, the Petition for Writ

of Certiorari should be denied.

DATED: June 11, 1993.

Respectfully submitted,

*L.F. SAMS, JR.

THOMAS D. MURRY

DONNA M. BARNES

MITCHELL, MCNUTT, THREADGILL,

SMITH & SAMS, P.A.

Attorneys At Law

Post Office Box 7120

Tupelo, Mississippi 38802-7120

(601) 842-3871

Attorneys for Respondent

North Mississippi Medical Center

*Counsel of Record

APPENDIX

neal a\ Wes

la

APPENDIX A

Supreme Court of Mississippi

Linda Stone, Clerk

Third Floor Gartin Building

450 High Street

P.O. Box 249

Jackson, Mississippi 39205-0249

DEPUTY CLERKS TELEPHONE:

YVONNE BURNHAM 601/359-3694

KATHY GILLIS FAX: 601/359-2407

August 1, 1990

W. Wayne Drinkwater Jr. William S. Lawson

BUTLER SNOW FIRM Attorney at Law

P O Box 22567 P O Box 848

Jackson MS 392252567 Tupelo MS 388020848

This is to advise you that the Mississippi Supreme Court

rendered the following decision on the lst Day of August,

1990.

Supreme Court Case #89-CA-0590

Trial Court Case #19993

Frances Nichols and David Nichols

Vs.

Grayden Tubb, M.D., Tom McDonald, M.D., and North

Mississippi Medical Center

Frances and David Nichols’ Statement of the Facts Treated

as a Petition for Extraordinary Relief Pursuant to Miss.

Sup. Ct. Rule 21, and as Such, Denied.

Frances and David Nichols’ Motion for an Expedited

Appeal and for Advancement of This Cause on the Court’s

Calendar Denied.

Supreme Court Clerk

lwp

ecs: Cary Egbert Bufkin

Dudley Collier Graham

Robert Kimmons Upchurch

Thomas Wicker

Lucius Featherston (Sandy) Sams J

Fred M. Bush Jr.

ot owe i A, Hele tt Wee A. 28

3a

APPENDIX B

Supreme Court of Mississippi

No. 07-KA-59378

Supreme Court of Mississippi.

Dec. 12, 1990.

Rehearing Denied Feb. 6, 1991

The Circuit Court, Lee County, Elzy J. Smith, J., found

attorney in criminal contempt. Attorney appealed. The

Supreme Court, Roy Noble Lee, C.J., held that evidence

supported conviction of attorney for violating court order

prohibiting postverdict communication with members of the

jury.

Affirmed.

Thomas J. Lowe, Jr., Jackson, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst.

Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and

SULLIVAN, J.

ROY NOBLE LEE, Chief Justice, for the Court:

William Lawson, a Tupelo attorney, was found guilty of

constructive criminal contempt by the Lee County Circuit

Court, Honorable Elzy J. Smith, presiding, and was sen-

tenced to pay a fine of two hundred and fifty dollars and

to serve a term of ten days in the Lee County Jail. The

jail sentence was suspended. Lawson appeals from the

judgment, contending that the Lee County Circuit Court

erred in holding him in criminal contempt and assigns the

following issue for this Court to decide:

4a

EVIDENCE OF HIS GUILT WAS NOT SHOWN TO BE

BEYOND A REASONABLE DOUBT.

FACTS

Appellant, a licensed attorney at law, tried an important

medical malpractice case, styled Frances and David Ni-

chols v. Tubb et al., in the Lee County Circuit Court. The

trial began on January 19, 1988, and concluded on Feb-

ruary 4, 1988. Apparently, the courtroom atmosphere was

charged with emotion, since it was rumored that the

defendants had offered on two occasions to settle the suit

for in excess of 1.5 million dollars, which was not accepted

by the plaintiffs. On February 4, in the absence of the

jury but in the presence of Lawson and other attorneys

in the case, the trial judge, Honorable Frank Russell, read

and entered an order governing the conduct of attorneys,

parties and other persons in the courtroom upon, and after,

return of the jury’s verdict.

‘ORDER REFERENCE CONDUCT IN COURTROOM UPON RE-

TURN OF JURY VERDICT AND QUESTIONING OF JURORS

The jury in this case having indicated to the Court it is prepared

to return to the courtroom for the purpose of reporting as to its verdict

in this case.

IT IS ORDERED AND ADJUDGED as follows:

1. Upon the return of a verdict by the jury in any civil or

criminal action, neither the attorneys in the action, the par-

ties, nor any other person in the courtroom or else where

shai] express to the members of the jury their pleasure or

displeasure with the verdict.

2. After the jury has been discharged, neither the attorneys

in the action, the parties, nor any other person shall at any

time or in a manner communicate with the jury or any

member thereof regarding the verdict.

Provided, however, that if any attorney believes in good faith that

the verdict may be subject to legal challenge, such attorney may apply

ex parte to the trial judge for permission to interview one or more

members of the jury regarding any fact or circumstance claimed to

Cag ee ee ee es

5a

Subsequent to reading the order, Judge Russell brought

the jury into the courtroom and the jury presented its

verdict for the defendants. Judge Russell advised the jury

that the mentioned order had been entered and that it

prohibited the attorneys and parties of the case from in-

itiating any conversation with members of the jury.

On the Saturday immediately following the trial, Dr.

Gary, a witness in the trial, who had been discharged prior

to the time that the aforementioned order had been read,

and who had no knowledge of the same, telephoned Mrs.

Denham, an alternate juror in the case. Denham had been

a long time friend of Dr. Gary and Gary, concerned with

the jury verdict, questioned Denham about such verdict.

During their conversation Denham made mention of the

fact that she had knowledge that the plaintiff in the trial

had been receiving seven thousand dollars a month from

workmen’s compensation. Gary, concerned that Denham

was privy to information which was not properly put into

evidence before the jury, called Lawson the next day, Sun-

day, and advised him of his conversation with Denham.

Lawson initially attempted to call Judge Russell to relate

to him the Gary/Denham discussion. Although Lawson

made several attempts to contact Judge Russell, he was

unable to do so. Lawson then called Denham. Denham

refused to give Lawson any information asserting that she

would not talk to Lawson without first gaining Judge Rus-

sell’s permission to do so.

Shortly after Lawson’s conversation with Denham, Law-

son then called Chester Stasko, a juror in the case. Stasko

related to Lawson that he had become aware of the work-

ers compensation payments to the plaintiff the evening

after the jury verdict had been given.

support such legal challenge. If satisfied that good cause exists, such

judge may grant permission for the attorney to make the requested

communication and shall prescribe the terms and conditions under which

the same may be conducted.

6a

The following Monday morning, Lawson went to Judge

Russell’s office to relate to Russell what had transpired

between himself and the jurors. Russell showed Lawson a

copy of his order which had prohibited communication with

the jurors absent obtaining prior court approval. At this

time Lawson immediately informed Judge Russell that he

had taped the conversations between himself and the ju-

rors.

Criminal Contempt proceedings were begun against

Lawson in the Lee County Circuit Court before Judge Elzy

J. Smith sitting specially.2 Lawson asserted that although

he was present at the time Judge Russell’s order had been

read, that due to a hearing deficiency he was unable to

comprehend the same. Judge Smith found Lawson guilty

of constructive criminal contempt and fined Lawson two

hundred and fifty dollars. In addition to such fine, Judge

Smith also sentenced Lawson to serve ten days in the Lee

County Jail. Judge Smith suspended the jail sentence due

to the many apologies made to the court by Lawson and

due to the fact that Lawson provided the court with tapes

of the prohibited conversations.’

LAW

Criminal contempt is conduct which is directed against

the dignity and authority of the court or the judge acting

judicially. Cook v. State, 483 So.2d 371 (Miss. 1986). “‘It

arises from an act obstructing the administration of justice

which tends to bring the court into disrepute or disres-

pect.” Jd. at 374. In essence the offense occurs when a

defendant wilfully, maliciously and contumaciously refuses

* Judge Smith is a circuit judge for the Eleventh Circuit Court District

of Clarksdale Mississippi.

* Lawson, unbeknownst to jurors Denham and Stasko, taped all of

the conversation he had with Denham and taped most of the conver-

sation he had with Stasko.

7a

to comply with a decree of the court. Cook v. State, supra;

Langford v. Langford, 253 Miss. 483, 176 So.2d 266 (1965).

In the case at bar, Lawson was convicted of constructive

criminal contempt which occurred outside the presence of

the court. Constructive contempt is “‘an act calculated to

impede or embarrass, obstruct, defeat, or corrupt admin-

istration of courts of justice when the act is done beyond

the presence of the court.’’ Coleman v. State, 482 So.2d

221, 222 (Miss. 1986) (quoting Knoz v. State, 160 Miss 494,

497, 135 So. 206, 207 (1931)). This court proceeds ab initio

in criminal contempt proceedings and it is the Supreme

Court’s responsibility to determine on the record whether

the defendant is guilty of the offense, not whether the

lower court judge was manifestly wrong in his finding.

Cook, 483 So.2d at 374. The burden of proof is on the

state and the state must prove each element of criminal

contempt beyond a reasonable doubt. Miss. Code Ann. § 11-

51-11(4) (Supp. 1990).

Lawson asserts that the state has failed to prove beyond

a reasonable doubt that he is guilty of constructive criminal

contempt. The substance of Judge Russell’s order had been

twice read in the presence of Lawson, once prior to the

jury being brought in and once in the jury’s presence.

Lawson does not dispute that the order was read but

rather asserts that he did not comprehend the order. Law-

son submits that he has a slight hearing disability which

makes comprehension of the spoken word difficult. Lawson

also suggests that compounding his hearing disability was

the fatigue he was experiencing as the result of such a

long and hard fought trial. Lawson states that Judge Rus-

sell’s order was unusual in that it required prior court

permission to contact jurors and that Lawson had never

heard such an order before.

While Lawson asserts that he did not comprehend Judge

Russell’s order his actions suggest otherwise. Lawson, upon

learning from Dr. Gary that Mrs. Denham may have had

———

8a

improper information, attempted to contact Judge Russell

on several occasions.‘ Sometime on that Sunday afternoon,

after some of the unsuccessful calls to Judge Russell were

made, Lawson called alternate juror Mrs. Denham.

Lawson: I Know you are probably tired of looking at

me, but we were mighty close together for the last

three weeks. Do you remember the judge?

Denham: Yeah.

Lawson: You know, he told me to check with some

of the jurors. And there are just one or two questions

that I need to ask you.

Denham: Do you mind if I call the judge and ask him?

Lawson: Yeah. I have got his number would you like

to?

Denham: Yeah. I would like to call him and ask him

if he gave you permission to call and ask me ques-

tions.

Lawson: Oh, yes. Do you remember when you were

standing there and, you know, he said two things.

One he didn’t want any demonstrations, you know,

any outburst. And second, he said he would allow—I

didn’t know what counselor he was talking about be-

cause we didn’t know the verdicts yet, you know. And

see, you weren’t a juror.

Denham: That’s right I wasn’t.

Lawson: You were an alternate.

Denham: Uh-huh.

‘Lawson attempted to reach Judge Russell at his home at 12:58

p.m.. Lawson learned that the judge was not home and that he may

be at his cabin. Lawson then made several other attempts to reach

the judge at his cabin and office at 2:59, 3:00, 4:41, 8:42, and 8:55

p.m.

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9a

Lawson: And he, you know, said he would give us

permission to either subpoena some witness back into

court or find out, you know, if it is agreeable with

them, you know, what happened.

Denham: Well, I am going to have to talk to him

first.

Although Lawson asserts he was unaware of the sub-

stance of Judge Russell’s order prohibiting communications

with jurors, Lawson stated to Denham “You know, he told

me to check with some of the jurors” even though Judge

Russell never told Lawson anything of the kind. When

Denham refused to talk with Lawson, since she was of

the opinion that she needed Judge Russell’s permission as

a prerequisite, Lawson attempted to get Denham to talk

with him by reminding her that she was not a juror but

rather she was an alternate juror. When Denham asked

Lawson for Judge Russell’s phone number Lawson at-

tempted to change the subject of the conversation, even

though Lawson must have had Judge Russell’s phone num-

ber handy since Lawson had been trying to call Judge

Russell all day. Instead of conveying Judge Russell’s phone

number to Denham, as she requested, Lawson told her

that he would put her in touch with the judge.

When Denham refused to talk to Lawson, he then called

Stasko, another juror. Although Lawson asserts that he

did not comprehend Russell’s order he stated to Stasko:

Lawson: And listen, you know what the judge said

there at the end when the verdicts were read?

Stasko: Uh-huh.

Lawson: He said that counsel would be permitted to

call, you know,. And now you don’t have to say one

thing to me if you don’t want to.

We are of the opinion that the state has proved beyond

a reasonable doubt that Lawson willfully, and contuma-

10a

ciously violated Judge Russell’s order and committed con-

structive criminal contempt. Judge Russell testified that

the order he read was one he used frequently and that

he has heard orders similar in content read on several

occasions. Lawson admits to being present in the court

room where Judge Russell read the order once with the

jury out and then subsequently conveyed the relevant parts

to the jury, with counsel present, when the jury was in.

Notwithstanding the order, when unable to contact Judge

Russell, Lawson contacted two jurors and attempted to

have them discuss items relevant to the case with him,

by pretending to have authority to contact such jurors

from Judge Russell.

The judgment of the lower court is affirmed.

SENTENCE OF CONTEMPT OF COURT AND PAY A FINE

OF $250.00 AND SERVE TEN DAYS IN THE LEE COUNTY

JAIL, TEN DAYS SUSPENDED UPON PAYMENT OF FINE

AND COURT COSTS AFFIRMED.

HAWKINS, P.J., DAN M. LEE, P.J., and PRATHER, ROB-

ERTSON, SULLIVAN, PITTMAN and BLASS, JJ., concur.

ANDERSON, J., not participating.