Metropolitan News-Enterprise


Wednesday, January 16, 2002


Page 1


Ninth Circuit Orders New Murder Trial, Says Judge Coerced Verdict


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Los Angeles Superior Court judge coerced a juror into voting to convict in a 1992 murder trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The divided panel ordered a new trial for William Packer. Judge Harry Pregerson, writing for himself and Judge Stephen Reinhardt, said Superior Court Judge Beauford Phelps gave one-sided instructions in response to a juror’s complaint that she was getting a “beating” from fellow jurors over her unwillingness to join the majority.

“Packer’s Fourteenth Amendment due process rights were violated because there is a strong likelihood that Judge Phelps’s coercive statements and actions during the jury’s deliberations caused Juror [Eva] Radcliff to change her vote,” Pregerson wrote.

Judge Barry Silverman dissented, saying Packer’s lawyer chose to gamble on the verdict rather than move for a mistrial. He also argued that the instructions couldn’t have had a coercive effect since the jurors continued to deliberate for several hours after they were given.

Packer is married to attorney Monica Knox, who has represented him since 1993. Knox worked on the brief for his successful appeal, which was argued by Los Angeles lawyer Elizabeth Newman.

Prison Restrictions

The relationship between Packer and Knox resulted in her being banned from sending attorney mail, or making attorney visits, to inmates in the state prison system, although an exception was made for one specific client, a death row inmate.

Deputy Attorney General Kenneth Sokoler represented the state.

Packer was tried before Phelps—who has since retired—on 17 felony counts, including second degree murder and attempted murder. Those two charges were still to be resolved after jurors returned verdicts finding him guilty of two counts of attempted robbery, two counts of assault with a deadly weapon, and one count of assault with a firearm, while acquitting on 10 other charges.

While the jurors were debating the last two charges, Radcliff wrote the judge, saying she had “health problems.” Given a meeting with Phelps and counsel, Radcliff said she was “a little burned out” and not sure she could continue.

She told the judge that she would try to remain, after a previously scheduled off day. (The conversation took place on a Tuesday, with the off day set for Thursday.)

Appreciation Expressed

The judge expressed his appreciation, noting that jurors would have to start deliberations anew if she had to be replaced with an alternate.

On Wednesday, however, the jury foreman wrote to complain that Radcliff “does not appear to be able to understand the rules” concerning deliberation.

After Phelps read the note aloud in open court, in the presence of the jury, the foreman explained that the panel was “just having the same conversation over the same issue over and over again.” The judge cautioned the jury that each juror had a right to disagree with the others, but that no juror had “a right not to deliberate.”

Phelps then ascertained that jurors were split 11 to 1, but didn’t ask which way. After the foreman said that further deliberations might help, even though the panelists were “getting tired of each other,” he asked if the holdout was deliberating, and the foreman said yes.

The judge then allowed jurors to ask questions about the deliberative process. In response to a question by Radcliff as to whether the jurors were supposed to interpret that law, Phelps explained that “the law is right there” in the instructions that were given and the jury should follow them.

The judge then excused the jury until Friday. That afternoon, Radcliff wrote the judge, complaining that she had been exposed to a “public beating in the jury box” on Wednesday and to further “beatings” from her fellow jurors and wanted off the panel.

The judge than had another meeting with Radcliff, over objections from defense counsel that the juror was being pressured into changing or vote or leaving the panel.

Radcliff told the judge her fellow jurors were upset that she wasn’t going along. Deliberations then continued, after the foreman assured Phelps that jurors were deliberating and that a verdict might be reached, before jurors were sent home until Tuesday.

Jurors found Packer guilty of attempted murder on Tuesday and of murder on Wednesday. His conviction was affirmed, in an unpublished opinion, by this district’s Court of Appeal and the state Supreme Court denied review.

U.S. District Harry L. Hupp denied Packer’s habeas corpus petition, but Pregerson said it should have been granted.

Packer, the judge said, satisfied the requirements of the Antiterrorism and Effective Death Penalty Act by showing that the state courts didn’t follow U.S. Supreme Court cases dealing with juror coercion.

The trial judge, Pregerson said, should have realized that Radcliff felt intimidated as a result of having other jurors’ discomfort with her discussed in open court. “Judge Phelps allowed this ‘public beating’ to occur by reading [the foreman’s] letter, unabridged, in open court, and without any attempt to lessen the impact of its ad hominem attacks of Juror Radcliff,” Pregerson wrote.

The problem was exacerbated, the appellate jurist said, because Phelps told the jurors that they were required to deliberate, but “never reminded Radcliff or the other jurors of their obligation not to surrender their conscientiously held beliefs.” In doing so, he wrote, “Judge Phelps did not exercise the care and caution required to preserve Packer’s due process rights.”

Silverman argued in dissent that Packer shouldn’t be allowed to complain about Radcliff staying on the jury after defense counsel argued against her being excused.

“Defense counsel knew full well how the judge had responded to the Radcliff situation, but defense counsel wanted this jury to continue its deliberations notwithstanding whatever the judge did, or could have done better,” Silverman wrote. “Had the judge declared a mistrial sua sponte based on either Radcliff’s statements or the judge’s own statements, the petitioner would have had a legitimate right to complain that a mistrial violated his right against Double Jeopardy.”

The case is Packer v. Hill, 00-57051.


Copyright 2002, Metropolitan News Company