Thursday, October 25, 2018
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Ninth Circuit:
Man Convicted of Death Caused by Drunk Driving To Get Hearing on Juror’s MADD Membership
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has said that a defendant convicted of the second-degree murder of his passenger in a high-speed, alcohol-fueled police chase is entitled to an evidentiary hearing to determine whether one of the jurors in the case was a member of Mothers Against Drunk Driving.
The 2-1 memorandum opinion, filed Tuesday, grants in part defendant Jason R. Pappas Jr.’s habeas corpus petition after his conviction by a jury in Riverside Superior Court in 2010.
Pappas was evading police in Cathedral City at a speed in excess of 85 miles per hour when he struck a palm tree. He was determined to have had a 0.25 percent blood alcohol content at the time; his passenger, Gregory Fisher, died as a result of the crash.
In a 2012 unpublished opinion, Div. One of California’s Fourth District Court of Appeal, rejected the defendant’s contention that prosecutorial and juror misconduct required a new trial. U.S. District Judge Cormac J. Carney of the Central District of California agreed with that decision, rejecting Pappas’ habeas corpus petition brought on the same ground.
Juror Misconduct
Ninth Circuit Judges Kim M. Wardlaw and Richard A. Paez joined in Tuesday’s majority opinion. In their view, one juror’s allegations that another juror was a member of Mothers Against Drunk Driving (“MADD”) required Carney to undertake a more extensive investigation than he did.
The complaining juror told Riverside Superior Court Judge David B. Downing that a female juror had commented during deliberations that “we at MADD had finally got some new laws passed,” or a similar statement.
Downing attempted to contact the six female jurors; one could not be found and another refused to cooperate. The judge obtained membership records from MADD—which he reviewed in camera—only with respect to the four who agreed to be contacted, and the records showed that they were not members.
During voir dire, Downing had dismissed, for cause, a woman who was a member of MADD for cause.
Majority’s Opinion
The opinion says:
“Despite a clear indication of a violation of Pappas’s Sixth Amendment right to a fair trial, the state trial court did not allow Pappas to subpoena the MADD membership records to determine if any juror who did not agree to be contacted was a MADD member because the trial judge was concerned this would be an improper invasion of juror privacy. However, allowing Pappas to subpoena MADD’s records would have been minimally invasive to the jurors’ privacy rights because the trial judge could have performed an in camera review of MADD’s response to the subpoena and, therefore, not revealed any juror names or information to counsel or Pappas.
“Instead, the trial court based its finding on an incomplete set of facts. In holding that Pappas was not entitled to a new trial, the trial court reasoned, ‘there’s not enough evidence for me to grant a mistrial or a new trial, rather, because I don’t know based on what I’ve heard whether any of the jurors were members or affiliated with MADD or not.’ Contrary to the dissent’s assertions, the trial court deemed the juror who provided live testimony credible, explaining that she ‘is a decent honorable person[,]’ and the trial court had ‘no doubt’ that her assertion that ‘something was said about MADD somewhere by a juror probably’ was true.”
Chhabria’s Dissent
U.S. District Judge Vince Chhabria of the Northern District of California, sitting by designation, disagreed with the majority’s characterization of the complaining juror. He wrote:
“The allegation that a juror from Pappas’s trial was a member of MADD came from Juror 1, who claimed after trial that another juror—an ‘elderly’ woman juror—made a passing reference to her membership in MADD during deliberations. But it appears from the record that Juror 1 was someone whose credibility, or at least her ability to perceive things accurately, could legitimately be questioned.
“By the time she made her allegations about MADD membership, Juror 1 had already accused a different juror—in fact arguably all the other jurors—of bias.…Juror 1 went on to say that she felt personally intimidated by this juror, and she believed another juror was intimidated by him as well.”
Chhabria noted that the foreman spoke to Downing on the record and told the judge there was no intimidation occurring.
Investigation Was Sufficient
The dissenting jurist went on to say:
“Perhaps the trial judge should have agreed to disclose the identities of the two other women jurors. Or perhaps he should have protected their confidentiality but found a way to check their names against whatever information MADD was willing to provide him for review in chambers. But the trial judge’s decision not to further investigate these two jurors was probably of no consequence, at least if Pappas’s assertions on direct appeal are to be believed.”
He continued:
“On direct appeal, Pappas did not argue that one of the two ‘missing’ jurors was biased. He seemed to argue that the allegedly biased MADD member was one of the four women (specifically, Juror 12) whose identities were disclosed to the lawyers and whose non-membership in MADD was apparently verified by the trial judge. It therefore appears, at least on this murky record, that the trial court obtained fairly reliable information that no MADD member lied her way onto the jury.”
Prosecutor’s Misconduct
The entire panel agreed that the prosecutor had committed misconduct during closing argument.
The prosecutor, then-Deputy Riverside District Attorney Grant Kim, told the jury:
“Now, we’ve seen this too many times, and, as a society, we took a stand and we said, ‘no more.’ We wrote laws with teeth, with harsher punishment for repeat offenders[.]”
Deputy Attorney General Christopher Beesley acknowledged at oral argument on June 5 in Pasadena that the prosecutor had “made mistakes.”
Wardlaw retorted:
“No he didn’t make mistakes. He was purposefully and intentionally talking about passing the drunk driving laws and I mean this is a big part of his closing argument.”
Chhabria chimed in:
“Abominable, I think is a word to describe it. It was abominable what…the D.A. did….”
Nevertheless, the panel agreed that any misconduct was not material, and did not support granting the petition.
The case is Pappas v. Miller, No. 16-55191.
Deputy Federal Public Defender Gia Kim of Los Angeles represented Pappas before the panel.
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