Federal Evidence Review

Fourth Circuit concludes that presumed prejudiced from the foreperson’s contact with television station and newspapers during penalty phase and before jury deliberations was rebutted, affirming denial of a motion for a new trial, in United States v. Basham, 561 F.3d 302 (4th Cir. March 30, 2009) (No. 05-5)

The Sixth Amendment provides the right to an impartial jury. This right extends to external communications by jurors. A recent Fourth Circuit case reviewed a challenge that the foreperson called the media during the penalty phase of a capital case. The circuit considered whether the presumed prejudice was rebutted based on the facts of the case, and concluded it was.

In the case, defendant Basham was sentenced to death for carjacking and kidnapping resulting in death. He escaped with another inmate from a detention center. During the escape, they committed a series of crimes, including kidnapping and murder. United States v. Basham, 561 F.3d 316 (4th Cir. March 30, 2009) (No. 05-5); United States v. Fulks, 454 F.3d 410 (4th Cir. 2006), cert. denied, 127 S. Ct. 3002 (2007). The two defendants were charged with committing carjacking resulting in death, kidnapping resulting in death, and related firearm and other offenses. The other inmate pled guilty and was sentenced to death. See United States v. Fulks, 454 F.3d 410 (4th Cir. 2006), cert. denied, 127 S. Ct. 3002 (2007). Defendant Basham proceeded to trial and was convicted by a jury and sentenced to death on two capital counts and to 744 months imprisonment on six other counts.

The day after the jury returned a death sentence, the federal prosecutor was contacted by a television station and advised that “a woman purporting to be a juror” on the case asked why the station was not reporting on the trial. She noted her belief that “the jury would have a difficult time reaching a decision in the penalty phase because there were several jurors for and several against the death penalty” and that the defendant “had ‘acted out’ in court and that there were some jurors from the upstate.” Basham, 561 F.3d at 316. The prosecutor reported the contact to the court and defense counsel. After a status hearing, the trial court summoned the female jurors from upstate. Nine hearings would be held on the issue.

Initially, three female jurors and the television producer testified during a sealed hearing. The foreperson;

“admitted to calling not only [television station] WSPA, but also two other television stations while the trial was in progress. [Foreperson] Wilson claimed that she made the calls in an effort to have the media do a profile piece on the dangers of shopping alone at malls. Wilson testified that none of the people she spoke with imparted any information to her, and that she did not pass along any specific information about the jury’s thoughts or deliberations. Wilson further testified that the jury did not begin discussing the penalty portion of the case prior to the deliberations. Finally, Wilson testified that her husband followed the trial via the internet, but that he did not share any of his findings with her until after the trial.”

The court subsequently expanded the hearing to include testimony from all jurors, the alternates, the foreperson’s husband. No juror indicated that the foreperson had provided any external information to the jury. After these hearings, the defendant moved for a new trial. The defense motion to obtain the telephone records of the foreperson was granted. The telephone records indicated that the foreperson contacted the media after the close of the evidence on the penalty phase and before instructions were given and jury deliberations commenced. The records noted calls to three television stations and two newspapers and a call to another juror. The foreperson testified at another hearing and stated she did not recall telephoning the newspapers. She explained the call to the juror was to offer a landscaping job and the case was not discussed. Further calls to other jurors were subsequently identified. No further investigation was authorized after the court considered the testimony of other jurors who indicated no premature deliberations transpired.

The motion for a new trial was denied. The external communications triggered the presumption of prejudice under Remmer v. United States, 347 U.S. 227, 229 (1954) (Remmer I) (“[A]ny private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.”). While the juror engaged in “egregious misbehavior,” the government had rebutted the presumption since “the contact did not involve the defendant, the government, or any witnesses in the case,” and the foreperson had “reached out to strangers to the suit who would have had no information other than what was available in the public arena.” The court concluded that “there is no evidence that the juror informed the other members of the jury about the phone calls.” Basham, 561 F.3d at 318 (citations omitted). The defendant appealed the denial of a new trial. Separately, the trial court held the foreperson “in contempt of court for violating its instructions not to discuss the case publicly” and fined the foreperson “$2,500 and ordered her to perform 120 hours of community service.” Basham, 561 F.3d at 318 n.7.

The Fourth Circuit affirmed the denial of the new trial motion. The foreperson’s violation of the admonition not to discuss the case with others did not violate the Sixth Amendment Impartial Jury Clause. See Basham, 561 F.3d at 319 (citing Mattox v. United States, 146 U.S. 140, 150 (1892) (Under the Sixth Amendment, “[p]rivate communications, possibly prejudicial, between jurors and third persons, . . . are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.”); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.”) (internal quotation marks omitted). There was no dispute on appeal that the foreperson’s media contact “constituted improper external communications and triggered the Remmer I presumption of prejudice.” See Basham, 561 F.3d at 320 (footnote omitted).

The circuit rejected a claim that the contact was structural. See Basham, 561 F.3d at 320 n.8 (citing Sherman v. Smith, 89 F.3d 1134, 1139 (4th Cir. 1996) (en banc) (noting harmless error analysis has been applied to “claims of juror misconduct and bias”). On the record, there was no "reasonable possibility that the jury’s verdict was influenced by an improper communication.” Basham, 561 F.3d at 320 (citing United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996)). As the Fourth Circuit explained:

“First, the extent of the communication, the most important factor, was minimal; several phone calls to different media outlets, none lasting longer than six minutes. To the extent Wilson received any information, it was a statement from the WSPA news producer Shannon Mays that she had covered the case in Indiana when Basham and Fulks escaped; such information was obviously cumulative of what the jury had already heard. In addition, the district court found ‘no evidence’ that Wilson ‘informed the other members of the jury about the phone calls.’ We admit the timing of the communication, right before jury instructions, is troubling. Courts rarely find external communication prejudicial, however, where, like here, the communications are ‘devoid of substantive content.’ Given the district court’s express finding that Wilson received no substantive information during these phone calls, we cannot say that the district court abused its discretion in denying Basham’s motion for a new trial. More importantly, the district court found that Wilson did not receive any ‘knowledge’ from the media outlets, and that there was ‘no evidence’ that Wilson informed the other jurors of the media contacts. Given these factual findings, which we believe are amply supported by the record, we do not believe the district court abused its discretion in denying Basham’s request for further inquiry.” Basham, 561 F.3d at 331-32 (citations and footnote omitted).

The circuit also commended the trial court’s handling of the issue after learning of the foreperson’s communication, including nine hearings, subpoenaed records, and careful review of the record.

For another recent case concerning juror contact with information outside the courtroom, see No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail.