The Juror Flinched

New trial ordered because he recoiled from evidence.

, The National Law Journal

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Cornell Law School professor Valerie Hans.  HANDOUT.
Cornell Law School professor Valerie Hans

The juror was a father of two who initially declared that he could fairly decide the fate of a man charged with viewing child pornography, despite strong reservations. Hours later, he left a telephone message with a courtroom deputy: "There is just no way I'm going to be able to view these pictures or video."

Even though the man kept ­insisting he wouldn't look at evidence at the heart of the case, U.S. District Judge David Dowd Jr. of Ohio's Northern District kept him on the panel. That decision cost the judge a rebuke by the U.S. Court of Appeals for the Sixth Circuit, which on Jan. 7 vacated Dowd's 14-year prison sentence for Trent Shepard.

"[T]he role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court," Senior Judge Martha Craig Daughtrey wrote, joined by judges R. Guy Cole Jr. and Julia Smith Gibbons. Trial judges, she stressed, must safeguard the accused's constitutional rights "from the whims of public opinion, prejudice, and expediency."

To observers, the case highlighted the pressures judges face when seating juries in disturbing criminal cases — particularly when there's a small pool of jurors. "Jurors show up and judges are reluctant to dismiss them. That difficulty can lead to situations like this," said Melanie Wilson, a professor and dean at the University of Kansas School of Law who has done research on the voir dire process.

In a postverdict memorandum, Dowd cited the lack of alternate jurors as a reason not to remove the one in question. He also noted the possibility that additional jurors might ask to be excused.

According to the Sixth Circuit record, the juror's reluctance grew as he contemplated sitting through the first day of trial in August 2011, when the jury was to view "very graphic images of naked, prepubescent children." He discussed his qualms with a fellow juror — they agreed the experience would be "rough." Dowd rejected a defense motion to dismiss the juror after that conversation came to light, and the Sixth Circuit sustained the judge's decision on that point, reasoning that the juror "did not inject any information or context into the trial or into the jury room that was not already conceded by the defendant himself."

However, Daughtrey wrote, "it is equally clear that [the juror] should not have been permitted to sit on Shepard's jury."

"Here, despite his earlier pronouncement that he could be fair and ­impartial in serving on Shepard's jury, [the juror] later informed the court that he had ­serious doubts about his ability to do so. Although the district court sought to frame those doubts merely in terms of an ability to view certain evidence, [the juror's] comments on the morning that evidence was actually presented were much more troubling."

Under the circumstances, it was necessary to reverse the conviction and vacate the sentence "in order to preserve the sanctity of the defendant's Sixth Amendment right to be tried by a fair and impartial jury," he wrote.

Shepard's lawyer on the appeal, Greg­ory Napolitano of Laufman & Napolitano in Cincinnati, did not respond to requests for comment. The U.S. attorney's office in Cleveland declined to comment.

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