Youngstown Daily Legal News

Mistrial granted in case where jurors were intimidated

ANNIE YAMSON
Special to the Legal News
Published: January 24, 2014

The 6th District Court of Appeals recently reversed the judgment of the Wood County Court of Common Pleas when it found that the court committed a structural error that resulted in a constitutional presumption of prejudice.

Herbie Betz appealed from the April 18, 2012 judgment of the Wood County court sentencing him to eight years in prison after he was found guilty of engaging in a pattern of corrupt activity, money laundering, illegal use of food stamps and receiving stolen property.

During his trial, a juror notified the court that over the lunch hour recess, she and an alternate juror had lunch at the same restaurant.

She said she saw Betz’s daughter and future daughter-in-law watching her.

When the jurors left the restaurant, the two women followed them to another location.

The juror stated that the women were “intently starting” at her and that they appeared to be writing down her license plate number.

When the juror returned to the court parking lot, she saw the women watching the alternate juror and said that they were openly writing down her license place number.

After the defense had presented its case and the jury retired for deliberations, the juror told the remainder of the jury as well as the bailiff that she felt intimidated by the lunchtime incident.

The jury members were instructed not to consider that information in their deliberations and the complaining juror was reassured that the authorities would be contacted and that she would be escorted to her car.

The trial judge and counsel then met to discuss the matter.

The prosecutor noted that the witnesses had been threatened and stated a concern for the safety of the jurors.

The defense and the prosecution agreed that, since there had been no direct communication with the jurors, it was not “prudent” to voir dire either the jurors involved or the entire panel for fear of increasing the prejudice to Betz.

When the jury returned its guilty verdict, Betz moved for a mistrial but the trial court denied the motion.

Upon appeal, Betz claimed that the motion should have been granted because of the allegations from the threatened juror.

“Appellant argues that any improper contact with a juror in a criminal action is presumptively prejudicial especially in light of the fact that the improper communication occurred just as the defense began to present its case,” wrote Judge Arlene Singer on behalf of the district’s three-judge appellate panel. “Further, he argues the prosecution had the duty to establish, at a hearing, that the contact was harmless.”

Judge Singer cited Crim.R. 33(A)(1), which provides that a new trial may be granted for improper third-party communication with a juror if the defendant is prejudiced by the misconduct.

“We agree with appellant that the incident in this case involved an improper ‘outside communication with a juror’ even though it involved non-verbal communication,” wrote Judge Singer.

According to Remmer V. United States, “any private communication, contact or tampering directly or indirectly with a juror” intended to influence the juror’s deliberations constitutes an improper outside communication.

The appellate panel held that the juror who witnessed the two women watching her genuinely believed that there had been an attempt to intimidate her.

“The second question is whether the improper third-party communication affected the ability of each juror to be fair and impartial and thus prejudiced appellant,” wrote Judge Singer, noting that whenever such a claim is presented to the court, the court must hold a hearing to determine whether prejudice exists.

According to the record, the court learned of the incident and instructed the bailiff to tell the jury to ignore it during its deliberations.

Despite the fact that the court met with counsel on the record, the appellate panel found it did not make any inquiry in order to determine how the jurors were affected by the communication or whether they could remain fair and impartial.

“We conclude that the trial judge failed to fulfill his fundamental duty to ensure the trial was fair and impartial,” wrote Judge Singer. “Therefore, we find that the trial court’s error gave rise to a constitutional presumption of prejudice and requires automatic reversal of the denial of the motion for a mistrial.”

The judgment of the Wood County Court of Common Pleas was reversed with judges Thomas Osowik and James Jenson concurring.

The case is cited State v. Betz, 2014-Ohio-55.

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