# Opposition Brief — Nichols v. Tubb

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 814

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0853%3A4. Public record. Not legal advice.