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Ninth Circuit:
Juror’s Concealing LAPD Service Not Basis for Habeas Relief
Opinion Says Petition Properly Denied Because Court Did Not Act Unreasonably in Finding Lack of Prejudice Where Police Clerk Omitted Employer’s Name Due to Desire to Serve on Panel
By a MetNews Staff Writer
Petitions for habeas relief, filed by two men convicted of a turf-war shooting who assert that their constitutional rights were violated because one of the jurors purposefully left out that she worked for a gang unit within the Los Angeles Police Department, were properly denied because findings that the omission was not prejudicial were not unreasonable, the Ninth U.S. Circuit Court of Appeals has held.
At issue is whether the defendants were entitled to have their petitions granted under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) which provides that federal habeas relief is only available if the “last reasoned state court decision” involves an unreasonable application of clearly established law or is based on unreasonable determinations of the facts.
In Monday’s memorandum opinion, signed by Circuit Judge Danielle J. Forrest and Senior Circuit Judges Jay S. Bybee and Richard R. Clifton, the court said that the convicts failed to meet that statutory standard, saying:
“Ultimately, even if the state court arrived at what some might think to be an incorrect result, that result must be upheld so long as ‘fairminded jurists could disagree on the correctness of the state court’s decision.’…[U]nder the ‘highly deferential’ standard set by AEDPA, Petitioners are not entitled to relief.”
Christmas Shooting
The question arose after then-Los Angeles Sheriff’s Department employee Victor McClinton was killed when he was struck by a stray bullet during a car-to-car shooting in Pasadena on Christmas morning 2012. At trial, witnesses identified the driver of the suspect vehicle as Larry Bishop Jr. and the shooter as Jerron Harris.
Bishop and Harris were charged with, among other crimes, first-degree murder and faced special circumstance allegations relating to the death being caused by a drive-by shooting and the crime having been committed for the benefit of the Pasadena Denver Lane Bloods gang. After the jury returned guilty verdicts, it was revealed that Juror Number 5 had intentionally failed to disclose that she worked for the LAPD unit.
Moving for a new trial, the defendants submitted declarations from Juror Number 5, admitting:
“I purposefully left out that I, in fact, worked for the Los Angeles Police Department gangs and narcotics unit as an administrative clerk. I omitted as well that I had been a dispatcher for LAPD before being a clerk. I understood the question and willfully chose to conceal my employment with the Los Angeles Police Department.”
She explained that she did not include the information because “[s]aying I work for LAPD sounds awful and I always wanted to be on jury duty so I did not say it in voir dire.”
Innocent Motivation
Los Angeles Superior Court Judge Curtis Rappe found that there was nothing in the declarations that demonstrated that the panelist “used her position to give the jurors extraneous information,” that the juror was credible when she “indicated that she could be fair,” and that her reason for concealing her position was “innocent.” Under those circumstances, the judge found that there was no substantial likelihood of prejudice and denied the motions.
On direct appeal, Div. Eight of this district’s Court of Appeal, in its April 19, 2019 opinion, assumed without deciding that the juror’s actions amounted to misconduct, but concluded that the presumption of prejudice was rebutted and that there was “no substantial likelihood that Juror No. 5 was biased against Defendants.”
In the unpublished opinion, authored by then-Presiding Justice Tricia Bigelow (now retired), Div. Eight noted that the juror admitted to conducting an “experiment” where she unsuccessfully tried to identify passing drivers—to see if the eyewitness testimony identifying Bishop as the operator of the vehicle was reliable—and challenged other panelists to try to do the same.
Saying that “[w]e can conceive no reason why Juror No. 5 would behave in this manner if she truly was biased against Defendants in the manner they suggest,” the court affirmed the judgment. The California Supreme Court denied review.
Each defendants filed a petition for a writ of habeas corpus. As to both filings, District Court Judge R. Gary Klausner of the Central District of California accepted the findings and recommendations of then-Magistrate Judge John E. McDermott (now retired) and dismissed the requests.
Certificate of Appealability
The panel acknowledged that Klausner denied the petitioners’ certificates of appealability but said:
“Petitioners were later granted certificates…by our court on the same issue: whether they were deprived of their right to a trial by a fair and impartial jury because Juror No. 5 intentionally failed to disclose during voir dire that she was employed by the LAPD in the gang and narcotics unit.”
Addressing the defendants’ assertion that Div. Eight’s determination that there was no substantial likelihood of prejudice was unreasonable, the panel said:
“Petitioners first argue that they demonstrated bias on the part of Juror No. 5….That characterization is misleading. Juror No. 5 was not questioned during voir dire about her responses, which were literally true. The declaration submitted by Petitioners established that she intentionally withheld information during voir dire, but ‘an intentionally dishonest answer [during voir dire] is not fatal, so long as the falsehood does not bespeak a lack of impartiality.’ ”
The judges continued:
“The California Court of Appeal noted that….it was ‘incumbent upon the attorneys to resolve any uncertainty in Juror No. 5’s responses by asking follow-up questions’ which they failed to do. And…there is evidence in the record regarding Juror No. 5’s conduct that can reasonably be viewed as directly undermining the claim that she was biased against Petitioners.”
Evidentiary Hearing
Bishop and Harris also argue that Widdifield erred in denying them a full evidentiary hearing on the issue of juror misconduct. Forrest, Bybee, and Clifton responded:
“The California Court of Appeal concluded that the trial court did not abuse its discretion by failing to conduct an evidentiary hearing because Petitioners had not adequately explained why an evidentiary hearing was needed. It concluded, noting its assumption of willful misconduct by the juror, that ‘there were no material, disputed issues of facts to resolve at an evidentiary hearing.’ Moreover, the record reveals that the trial court did hold a hearing during which it considered evidence presented by Petitioners of Juror No. 5’s claimed bias.”
As to the defendants’ claim that the 2017 Ninth Circuit decision in Godoy v. Spearman stood for the proposition that “it was error for the court to rely on the very same statement from [a juror’s] declaration both to raise the presumption of prejudice and to rebut it,” the judges wrote:
“After the Court of Appeal assumed juror misconduct, it also determined that the trial court was correct to find that an evidentiary hearing was not necessary because that presumption was rebutted. But that court did not rely solely on ‘the very same statement from [the] declaration’ to rebut the presumption of evidence. It considered the declaration as a whole, as well as additional evidence from the record, to conclude that the presumption of prejudice had been rebutted….Petitioners have not demonstrated that the California Court of Appeal unreasonably applied federal law.”
The case is Bishop v. Robertson, 22-55858.
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