Homicide conviction questioned after jury selection blunder
Juror later reveals to judge he was not a U.S. citizen
March 20, 2006 Lawyers Weekly Exclusive
By David E. Frank
A slip-up in the jury selection process in a state court homicide trial resulted in a non-U.S. citizen sitting as a juror in a first-degree murder case, Lawyers Weekly has learned.
The gaffe comes just months after U.S. District Court Judge Nancy Gertner — in the midst of a high-profile death penalty case that she is presiding over — publicly criticized the federal jury selection process.
The recent incident involving the Superior Court juror means that the fate of 21-year-old Michael Jackson — sentenced on March 16 to life in prison without the possibility of parole for a 2002 Roxbury shooting — now lies in the hands of the Supreme Judicial Court.
"I pointed out to the judge that the SJC has emphasized the importance of jurors having knowledge of the judicial system and the necessity to therefore have citizens of the United States sitting on juries," Jackson's attorney, Robert J. Wheeler Jr. of Boston, told Lawyers Weekly minutes after a sidebar conference with Judge Patrick F. Brady and Suffolk County prosecutor Paul M. Treseler.
Pursuant to G.L.c. 234A, Sect. 4, an individual must be a U.S. citizen in order to qualify for jury service.
While some wondered why and how the error occurred (see sidebar, "Lawyer: State jury system has ‘blinders’ on," below), Wheeler emphasized that the stakes could not have been any higher than they were in Jackson's case.
"When a young man is facing life behind bars as Mr. Jackson is here, I think that person is entitled to make sure that all the jurors deciding his fate are qualified to hear the case," he said.
Post-verdict
On March 6, moments after a jury found Jackson guilty of murdering 25-year-old Jose Lane at the conclusion of a week-long trial held in Suffolk Superior Court, Brady, as is his custom, went into the deliberation room to thank the 12-member panel for its service.
According to Wheeler, juror 13-1 asked Brady to make a recommendation for an immigration lawyer.
The judge reportedly told the juror that he could not make such a referral and advised him to consider calling the Boston Bar Association.
Brady later explained to the lawyers that it occurred to him that evening that the juror's question may have meant he was not a U.S. citizen.
The next morning, the judge reportedly asked Assistant Clerk-Magistrate Connie S. Wong to contact Wheeler and Treseler in order to advise them of his conversation with the juror.
After conducting a hearing with the lawyers at 2 p.m. that day, Brady ordered the juror to be brought into court on March 14 for a further hearing.
The juror appeared in court and met with the lawyers and Brady at sidebar.
From the bench, Brady held a copy of an Office of Jury Commissioner (OJC) "Juror Instructions and Information" pamphlet that is mailed along with a summons and juror confirmation form to all prospective jurors.
The form asks jurors to review page five of the pamphlet entitled "Reasons for Disqualification," which lists 10 categories that disqualify a person from service.
The first reason listed for disqualification reads: "not a U.S. Citizen (Write alien card identification number, visa status, or any other pertinent information.)"
At sidebar, the juror told Brady that he recalled receiving the form in the mail but had misplaced it, according to Wheeler. He said he called the OJC to advise the office he no longer had the paperwork.
The juror explained that he was then told he was not required to fill out a new form and was given a Feb. 27th date for jury duty.
Confidential juror questionnaire
The juror appeared in Suffolk Superior Court on Feb. 27 and filled out a different form given to all prospective jurors entitled "Confidential Juror Questionnaire," which did not inquire about his status as a citizen. He ultimately was selected to sit on the murder case.
According to Wheeler, when Brady asked the juror during the March 14th sidebar conference if he had an alien registration number, he said that he did not. He indicated that he had a Massachusetts driver's license but was not a citizen.
As the attorneys and Brady consulted with the juror, Lawyers Weekly overheard Jackson, seated in handcuffs at the defense table, say to a young woman in the audience: "pray for a mistrial."
When Wheeler requested a mistrial, Brady asked how he could do so after the jury had already returned a verdict.
Treseler opposed Wheeler's request and argued that the defendant's two options were either to file a motion for new trial or seek appellate review by the SJC.
Wheeler then orally filed a motion for new trial, which Brady denied.
After Treseler moved for sentencing, Brady imposed a mandatory life sentence on the murder charge and a four-and-a-half- to five-year prison term on the firearm charge.
What's next?
Outside the courtroom, Wheeler told Lawyers Weekly that the issue took all the parties by surprise and noted that where the defendant was convicted of first-degree murder, the issue would automatically be reviewed by the SJC.
"There is absolutely no case on point that deals specifically with this issue," he observed. "We're wrong to do it, but the reality is that lawyers and judges just assume that the jury commissioner selects people to respond for jury duty who are citizens."
Cases like Jackson's clearly demonstrate that such assumptions are not always accurate, he added.
Jury Commissioner Pamela J. Wood said she was not aware of any prior instance where a non-citizen had sat on a jury, but that the OJC disqualifies dozens of people daily for lack of citizenship.
She said that some of those individuals, for a variety of reasons, end up going to court to answer for jury duty, at which point a jury pool officer or other trial court employee disqualifies them.
"Certainly, we never would have told him to serve because there's no question he's not qualified," she said.
Wheeler said that the issue on appeal may come down to whether the SJC holds that the defendant waived his right to challenge the juror by not exercising a peremptory challenge or seeking to have him removed for cause.
"But that puts you, as the lawyer, in a tough position," he said. "If a person has a name that's not traditional American sounding, are you supposed to ask whether or not they're a citizen? How can you do that?"
In the future, he said, lawyers will need to take steps to ensure that all of the information contained in a jury questionnaire is answered.
He added: "What we're going to have to do is request that the judge ask the entire jury pool during empanelment whether anyone in the venire is not a citizen."
He said he found a few related cases, mostly from the 19th and early 20th century, where it was later determined that a juror who had sat on a case should have been disqualified.
Those verdicts were upheld, Wheeler said, because the court determined that the lawyers had an opportunity to challenge them.
When asked whether he anticipated a similar outcome in the Jackson case, he responded that the matter is now in the hands of appellate counsel.
David Procopio, spokesman for Suffolk County District Attorney Daniel F. Conley, said that prosecutors would address the matter when and if the issue is raised on appeal.
"If the defendant files an appeal," he said, "any response will be made in the appropriate forum — the courtroom."
* * *
Lawyer: state jury system has ‘blinders’ on
How could it happen?
That's the question lawyers are asking in the wake of a jury selection error that resulted in a non-U.S. citizen sitting on a first-degree murder case.
Timothy J. Bradl of Boston, a criminal defense attorney and former prosecutor in the Suffolk County homicide unit, said he had never heard of such a scenario and noted that the issue could have easily been avoided by having a more thorough juror form.
The fact that the confidential juror questionnaire is not as complete as the form sent to jurors in the mail is an example of "how not enough care and attention [is] being paid to getting vital information from jurors in Massachusetts," Bradl said.
He added: "This is an example of what can happen as a result of the jury system in Massachusetts essentially putting on blinders to important information that lawyers need to get from potential jurors."
The simple remedy, according to Bradl, would be to include a query on the juror questionnaire about citizenship.
"To potentially jeopardize a murder conviction because the questionnaire didn't have a simple 'yes' or 'no' question as to citizenship is an absolute travesty," he said. "If you think of all the work that lawyers put into a murder trial, and the suffering and anxiety it causes for a victim's family, to possibly have to do that all over again because a juror questionnaire form didn't have a simple 'yes' or 'no' box is beyond ridiculous."
Asked why the confidential jury questionnaire does not include a question about citizenship, Jury Commissioner Pamela J. Wood noted that under a proposed revised questionnaire currently being reviewed by the Jury Management Advisory Committee, the new form would include such language.
"It says at the top that you must be a citizen, understand English and be 18 years of age or older to serve," she said. "You'd like to think that if they saw it on the day of trial on their questionnaire, that it would increase the chances that something like this wouldn't happen." |
