What’s On Their Minds: What Standard Should Be used to Grant a Mistrial for Juror Misconduct? State v. Gunnell

On July 19, 2012, the Supreme Court issued a merit decision in this case.  Read the analysis of the decision here.

On October 19 the Supreme Court of Ohio heard oral argument in State v. Gunnell,  2010-1636.  The case involves the granting of a mistrial in a murder case because a juror did independent internet research on the definition of the word “perverse” and a definition of “involuntary manslaughter” which she brought into the jury room during deliberations.  The bailiff discovered this and reported it to the trial judge, who questioned the juror, allowed the parties the opportunity to do so, and ultimately declared a mistrial in the case on the state’s motion. The Second District Court of Appeals reversed. Read the oral argument preview of this case here. 

The state argued to the Supreme Court that there was a manifest necessity for a mistrial in this case, and that the public interest in a fair trial outweighs the defendant’s interest in having her case heard by a particular jury.  The court of appeals erroneously engrafted a new standard onto a trial judge’s discretion, finding a per se abuse of discretion for failure to follow a formulaic script for juror misconduct set forth by the appeals court.

 The defense argued that the trial court incorrectly presumed prejudice without further inquiry, failed to make adequate inquires of the juror individually and of the entire jury before declaring a mistrial, and pushed the state into moving for a mistrial. The defense also argued heatedly against the adoption of the state’s second proposition of law, which would shift the burden of proving the absence of juror prejudice onto the party not seeking the mistrial (here the defense).

 The justices were clearly concerned about interfering with a trial court’s discretion in deciding whether to grant a mistrial. 

 Discretion, discretion, discretion

Chief Justice O’Connor asked whether the trial court was entitled to find a juror irreparably tainted when she didn’t follow the basic instructions in the case.

 Justice Pfeifer asked whether a judge must make a reasonable effort to see if a tainted juror can be rehabilitated, or whether the trial judge can just look at the misconduct and determine that it is prejudicial without much further inquiry.

 Justice Stratton pressed very hard on the right of a trial judge to evaluate the credibility of a juror’s answers—if the judge determines there is no way to rehabilitate a juror, isn’t that the judge’s call? Are we going to require some magic words, like “are you prejudiced?” Chief Justice O’Connor also asked why it wasn’t the trial court’s prerogative just not to believe the tainted juror?  It’s not “up for a vote” as she put it—isn’t it the judge’s sole call? Since the prosecution did not ask for the mistrial, couldn’t the trial court take the equivalent of judicial notice that the juror was tainted?

 Is this just error correction, or is the state asking for new law here?

Justice O’Donnell asked what new law was coming out of this case?  Wasn’t this just error correction—telling the court of appeals it got it wrong? Why should the Court re-write a rule that had already been written?

 But Justice McGee Brown later stated that the state’s second proposition of law, which asked the Court to shift the burden to the defense of proving that juror misconduct was not prejudicial in the case, was new law. She also expressed her concern that the state was not initially going to ask for a mistrial, but seemed to be pushed into doing so by the trial court.

 Justice Stratton asked if there was a presumption either way under the current rule.

 Justice Cupp mused whether the appeals court was really requiring something beyond the general rule, which is to discover what happened, and see if it can be corrected?

 So exactly what did the trial court do here, and what should it have done?

 Chief Justice O’Connor asked if there should be a standard rote list of questions in this  circumstance as there is with a Rule 11 colloquy, or just areas of inquiry which must be covered?

 Justice Lanzinger noted that none of the other jurors were questioned, nor was the panel brought in and asked anything as a whole. She asked if the jury was specifically instructed not to conduct any internet research. She later asked if the defense believed that nothing should be deemed inherency prejudicial, that any time something like this comes up, a judge must always make inquires before declaring a mistrial. (answer: yes)

 Justice O’Donnell wanted to know if the jury charge was sent back to the jury in writing (It was).  Was the jury instructed to consider only what it heard in the courtroom or was told by the judge? (yes).  He also wanted to know if the court questioned the juror about putting what she had learned from the internet out of her mind altogether and whetrh she then could continue on the case. (no).

 Justice Cupp wondered if the juror was just asked what she had done, or whether she understood that she had disobeyed the judge’s instructions.

 What was the jury told about the definition of “perverse”

The justices were concerned that it was almost midnight on the first day of deliberations when the jury asked for a definition of perverse, but did not receive it because the court determined no jury instruction covered that.  They were not told that they would or would not get that definition the next morning. It seemed apparent the justices were more concerned with the internet research on involuntary manslaughter than on the word “perverse”.

 Justice Pfeifer asked whether under those circumstances it was not human nature just to go and look it up?

 Justice O’Donnell asked whether the case would be before the court  at all if looking up perverse was the only thing that had happened.

 Could other steps have been taken to save this trial?

Why not substitute an alternate juror during deliberations in this case, Justice O’Donnell asked.  Both parties agreed that the then-existing rule, since changed, was that was not permitted during deliberations.  The alternates jurors had been discharged when deliberations began.

 The blessings and the curse of the internet

Justice Lanzinger commented that this case has broad implications because internet access can send jurors far afield from a judge’s instructions.

 Justice O’Donnell asked if the trial court had tried to determine whether  what the juror learned from the internet was consistent with Ohio law?

 How it Looks From the Bleachers

Appellate courts hate mistrials, no question about it.  But appellate courts also believe very strongly in judicial discretion—it takes a lot for a reversal on abuse of discretion. While the Court may well agree that the trial judge could have done a better job before declaring a mistrial, it is unlikely it will require a standard script or find an abuse of discretion here.  That said, the Court is unlikely to adopt the state’s second proposition of law, and shift the burden of proof on the prejudice prong to the party not seeking the mistrial.  The Court may also wish to suggest a standard jury instruction admonishing the jury not to do any kind of independent internet research.

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