Monday, June 18, 2007
Justices Reverse Conviction Over Blogging by Juror
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal has reversed a burglary conviction, saying the jury foreman committed misconduct and may have deprived the defendant of a fair trial by discussing deliberations on his blog.
In an unpublished opinion Thursday by Justice Terry O’Rourke of Div. One, the court said a San Diego Superior Court judge abused her discretion by denying Donald McNeely an evidentiary hearing under Code of Civil Procedure Sec. 237 on his motion for disclosure of juror identifying information.
If the court decides after a Sec. 237 hearing that McNeely is entitled to the information, it must then reconsider its denial of his motion for a new trial; otherwise, the conviction will be reinstated, O’Rourke explained.
Judge Laura P. Hammes sentenced McNeely to 38 years, eight months to life in prison under the Three-Strikes Law after jurors found him guilty of residential burglary, grand theft, and receiving stolen property, although they deadlocked on a second grand theft charge. He admitted 11 prior convictions for residential burglary resulting from two separate prosecutions, in 1989 and 1992.
McNeely was arrested after allegedly trying to trying to have the security password erased from a laptop computer, which he was charged with taking from a LaJolla hotel room. He was also charged with taking other property from that and another hotel, the items being found in a search of his car.
In moving for disclosure of juror identifying information and for a new trial, McNeely’s attorney said she had just learned that the foreman was a member of the State Bar and that he had posted comments about the defendant, the lawyers, and the trial to his blog during the proceedings.
The foreman, identified only as Juror No. 8, said he had identified himself as a project manager for a technology company—not disclosing that he had held that title for only two months, after previously serving as the firm’s in-house counsel—because it was “[m]ore neutral than lawyer, don’t ya think.”
He also posted detailed accounts of jury deliberations, writing, “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial. (Ha. Sorry, will do.)”
He also referred to the defendant as “Donald the Duck,” identified other jurors by first name, said he had planned to become the foreperson, and said that one of the jurors was “a cocky young fellow” who “threatened to torpedo two of the counts”—the second grand theft and receiving stolen property—“in his quest for tyrannical jurisprudence.”
Ultimately, he explained, he polled the jurors and obtained a unanimous vote to convict on receiving stolen property. The vote on the second grand theft count was a 6-6 deadlock.
In denying the Sec. 237 hearing, Hammes agreed that the juror had committed misconduct, but said there was nothing to indicate that anything “went wrong in that jury room.”
O’Rourke, however, said that the defense is entitled to “more fully explore [its] claim relating to the possible compromise or coerced verdict.” If the posted account of what occurred in the jury room is accurate, the justice said, “it appears [Juror No. 8] pressured or at encouraged the jury to reach its verdict” on the basis of a compromise or what an earlier case called “concession to expediency.”
McNeely’s appellate attorney, Waldemar Halka, said he believes the conviction should have been reversed outright. He said he plans to ask for a rehearing at the appeals court before the opinion becomes final.
“I think my guy should get a new trial,” Halka told The Associated Press. “This whole thing, it just smells bad.”
The case is People v. McNeely, D048692.
Copyright 2007, Metropolitan News Company