There’s legal stuff in this post, so bear with me. I’ll try to make it clear; but, there’s a caveat: I am not a lawyer, so any thoughts I offer in this post, no matter how strongly I may believe it, should not be taken as legal advice.
After Steve had been convicted, Emma Barrens, one of the jurors, was subpoenaed to appear at Steve’s motion for a new trial. Steve’s investigator, Tom Swearingen (now working for his new attorney, court-appointed Max Sommers) spoke to Ms Barrens after the trial, and she admitted that the jury had made a deal to swap votes, so Max had her create an affidavit to that effect.
What happened was this: There were three counts against Steve. The jurors had to be 100% in agreement on each count in order to either acquit or convict Steve of the charges in that count. After much deliberation, they weren’t all in agreement, but they made a deal to trade votes to end their stalemate. Some of the jurors switched one of their three votes from an acquittal to a conviction, and some switched two of their votes from convictions to acquittals. That resulted in a conviction on Count I and acquittals on Counts II and III; but that also means that all of them made a deal to change their verdict from what they believed was true to something contrary to their belief. Doesn’t that mean that all of the jurors, by voting against their own conscience, condemned someone to 35 years of removal from the “outside” world?
The motion for a new trial took place on October 26, 2006, a little over two months after Steve’s conviction. Max Sommers, Steve’s appeals attorney (court appointed this time because Steve was indigent by then), argued that Steve should be given a new trial because of Texas’ Rule of Appellate Procedure 21.3. This rule says that a defendant has to be given a new trial when any one of several conditions have been met. Sommers argued that subsections (c) and (g) of that rule applied in this case. Subsection (c) states that a defendant “must” be given a new trial when the verdict had been “decided by lot or in any manner other than a fair expression of the jurors’ opinion,” and subsection (g) states that a new trial is required “When the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial.”
Sommers reasoned that (because they swapped votes in order to reach a verdict) Steve’s case wasn’t decided based on the juror’s true opinions, and because of that action they deprived him of the right to a fair trial. He asked Judge Hawes to call Ms. Barrens to the stand to testify. The prosecutor, Elmer Ross, objected, saying that neither the affidavit nor Ms. Barrens’ testimony could be admitted because they did “not meet the requirements of 606 (b).” The judge agreed with Ross.
Rule 606 is a Texas Rule of Evidence regarding the competency of a juror as a witness. It has two parts, (a) and (b). Part (a) states that a juror can’t be a witness during a trial in which they are also a juror. Logically, that makes sense. That would be a conflict of interest. Part (b), which has two parts (1 and 2) reads:
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify
(A) about whether an outside influence was improperly brought to bear on any juror; or
(B) to rebut a claim that the juror was not qualified to serve.
What that means is that a juror, except in rare instances, can’t testify about anything that happened in the jury room. The rule essentially prevents a verdict from being nullified once it has been rendered. Judge Hawes agreed with Ross, and so did every other court Steve appealed to, including the U.S. Supreme Court. Currently, nothing can be done to change the verdict in Steve’s case other than re-opening it with new evidence. Ten years later, both Steve and I came to believe that another juror, Ronelle Wilcox, gave Steve the new evidence he needed when she withheld information in order to get on Steve’s jury. His appeal in federal court (based on that evidence) was quashed, though, for reasons unrelated to the evidence, which effectively killed his ability to use any of it in the future.
A Note: Steve’s appeal wasn’t rejected because there was anything wrong with the evidence. It was denied because Steve didn’t file the appeal within a specific length of time (and the courts got to decide when that time began and ended). The evidence about Ms. Wilcox’s conduct during jury selection, was now useless to Steve (just like the evidence of the jury making a deal to swap votes), and was never considered by the court.
According to the law, 21.3 and 606(b) work in partnership with each other, but I think one of them kills the other because of the way they are applied. I believe, instead, that the rule of evidence, 606(b), actually prevents the appellate rule, 21.3, from functioning. Logically, in order to apply an appellate rule, you have to have a verdict to appeal, but 606(b) won’t allow a juror to testify to change a verdict once it has been rendered, which means that 21.3 is automatically neutered. They can’t work together (as the courts have claimed) if one prevents the other from being used. If a juror goes to the judge before the verdict is rendered, 21.3 can apply, but since there would be no verdict at that point, 606(b) is unnecessary. It’s only purpose, as far as I can tell, is to limit the retrying of cases by putting a block on jurors. That may lift some of the burden from the judicial system, but it does nothing to help innocent people who were wrongly convicted because of jury misconduct.
There are plenty of earlier examples of vote trading. For example, in People v. Fleiss (yes, the Hollywood Madam), in 1996, a verdict of guilty was reversed on appeal. Heidi Fleiss’ jury returned a guilty verdict on possession of cocaine, three not guilty verdicts on prostitution, and were deadlocked on two other counts of prostitution. As it turned out, some members of that jury also made a deal because they apparently had an agenda to get some sort of conviction no matter what. One of the jury members told another one that he would trade not guilty votes on the prostitution charges for guilty votes on the cocaine charges. When that was discovered, the case was appealed. In that legal opinion, the appeals court said, “Fleiss was entitled to a trial by jury of 12 persons,” and said that the jury was “sworn to inquire of certain matters of fact, and declare the truth of evidence to be laid before them.” The court also ruled that members of her jury “violated their oaths, ignored the evidence, abandoned their duty to seek the truth, and turned deliberations into a bazaar. These jurors did not act as a jury. Fleiss did not truly receive a trial by jury. The guilty verdicts rendered by this panel cannot stand.”
That court (in 1996) reversed the original decision, saying that trading votes was a form of prejudicial misconduct that “strikes at the heart of the justice system.” They added that “This was supposed to be a trial, not an auction. The jurors involved in this misconduct committed a transgression worse than those with which Fleiss was charged. Through no fault of the court, the litigants, or their representatives, those jurors turned this serious proceeding into a farce. This verdict resulted not from the evidence, but from extraneous and improper considerations.”
Strong words, and they could just as easily have applied in Steve’s case if it hadn’t been for 606(b). There have also been other instances of vote trading on juries, like in the trial of Steven Avery (as documented in the Netflix series, Making a Murderer), among others. Unfortunately for Steve, it used to be possible in Texas (as it was in California for Fleiss) for a juror to “testify as to any matter relevant to the validity of the verdict or indictment.” When Rule of Evidence 606(b) was adopted, though, they could no longer do that. Because of that rule, no matter how the jury reached their decision (except in a few rare instances, like someone on the outside threatening a juror’s family member or bribing them), once a verdict had been rendered, a juror’s testimony couldn’t change it.
Here’s an example of how the courts in Texas look at Rule 606.
So, even though we have evidence in Steve’s case that the jury cheated to arrive at a verdict, these rules make it possible for the courts to say, in effect, “It doesn’t matter whether you’re innocent or guilty, the verdict has been rendered. Tough luck.”
How do you feel about these rules? Do you have any thoughts about whether they’re fair or not? Or about how they could be made better? Do you disagree with my assessment of them? Can you offer a logical explanation of how they actually do work to benefit defendants in any way? Your thoughts would be welcome.
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