Metropolitan News-Enterprise


Thursday, February 28, 2002


Page 3


Ninth Circuit Denies En Banc Review of Ruling That Phelps Coerced Verdict


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday denied prosecutors’ request for an en banc hearing on whether a Los Angeles Superior Court judge coerced a juror into voting to convict in a 1992 murder trial.

In a brief order, the court said that none of its 24 active judges had called for an en banc review following a Jan. 15 ruling by a three-judge panel that 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.

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.

Silverman, according to yesterday’s order, voted to grant a rehearing before the panel, but neither he nor any other judge of the court called for review by an enlarged court of 11 judges.

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.

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.

One juror, Eva Radcliff, wrote the judge during deliberations, saying she had “health problems” but agreed to continue after meeting with Phelps and counsel. On the next day of deliberations, 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.”

Radcliff later wrote the judge, complaining that she had been exposed to a “public beating in the jury box” 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 for the day.

Jurors found Packer guilty of attempted murder the next day and of murder the day after that.

But Pregerson said the trial judge should have realized that Radcliff felt intimidated as a result of having other jurors’ discomfort with her discussed in open court. 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.”

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.

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


Copyright 2002, Metropolitan News Company