Judge’s Communications with Jurors: New Maryland High Court Opinion

I rarely write about criminal cases because I find criminal cases uniquely depressing and because they rarely relate to what we, as personal injury lawyers, are doing. Venus and Mars. I have no idea how to handle a criminal law case and criminal lawyers have no idea how to handle a personal injury case. Yet, annoyingly, criminal lawyers think they do, which is why I’m constantly getting calls from potential clients complaining that a mostly criminal lawyer is screwing up their accident claim. (Did I just say that in my out loud voice? Sorry.)

But this Maryland Court of Appeals case decided last week – Maryland v. Thomas – addresses two issues that are of interest to all trial lawyers: (1) what to do with jurors who – for good reasons and bad don’t want to be on the jury, and (2) under what conditions do appellate issues arise from juror communications to third parties – notably, in this case, with the court.

The defendant in this case was convicted of second degree depraved heart murder after a stabbing outside of a Baltimore County night club. I forget exactly what “depraved heart” means, but it does not sound good. The Court of Special Appeals reversed defendant’s conviction, finding that while the evidence was sufficient for the jury to convict, the trial court committed prejudicial error when it failed to promptly notify the attorneys of a communication between the trial judge’s lawyerdoingstuffsecretary and one of the jurors. Apparently, the juror called the secretary and he wanted to get the prosecutor’s home number to ask her out. The judge thought this was no big deal.

Okay, I’m making that up. That would be over-the-top. This problem was far more nuanced. After the juror at issue was chosen, the juror told the judge and the lawyers that his grandmother is 89 years old and is expected to die any minute. The juror also made clear that he just had to be at the funeral if there was one and otherwise fully intended to serve.

The juror’s grandmother dies. Baltimore County Circuit Court Judge Michael Finifter reveals a note from the juror requesting off the jury to assist in preparing for his grandmother’s funeral. The judge also advises counsel that the judge’s secretary had been contacted by a member of the juror’s family to tell him about the death of his grandmother. The juror apparently said, without the lawyers present or notified of the issue, that he would be able to continue. These conversations took place before the alternates were discharged. Subsequent to this, the juror changed his mind, and once again requested to be excused.

Now the court is in a box and the defense attorney is mad that he was not made aware of the discussions with the juror. The judge refused the juror’s request to be excused. The defense lawyer – who probably saw the conviction coming – sought a mistrial which the judge denied.

The Maryland Court of Appeals affirmed the trial CSA finding that the defendant should be given a new trial. The court found that the trial court’s failure to disclose the communication violated Maryland Rule 4-326 (d) that requires that all juror communications outside of the presence of counsel must be brought to their attention, dismissing the prosecutor’s argument that a juror’s confirmatory response indicating a willingness to continue as a juror is not the type of communication that implicates Rule 4-326(d).

To me, the tougher question is whether there was prejudice. I mean, does anyone think the conviction would not have occurred but for this fiasco? But the Maryland high court took a “messing around with jurors is sacrosanct” type position, finding that the death of the juror’s grandmother created a real risk that the juror would rush to judgment to get back to funeral preparations.

If I were the prosecutor, I would just argue that the judge would have done the same thing anyway. But the court had an answer for this. If the lawyers had been made aware of the problem, the court reasoned, they would have had the opportunity to evaluate the emotional state of the juror and ask questions to flush the issue out.

Boy, the defense lawyers did another nice job turning over every stone and pulling out every argument in this case. The public defender’s office really did a bang up job, huh? Think again. The defense lawyers were one lawyer who just left Arnold & Porter and another still at the firm. Arnold & Porter is a D.C. firm that had, at last count, five million lawyers. Would Joe Average Defense Lawyer in Baltimore, had made these arguments and pursued them as vigorously as they were in this case? I doubt it.

You can find the court’s opinion in Maryland v. Thomas here.

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