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The judge should have declared a mistrial instead, the appeals panel ruled. They ordered that Justin Scott, Damian Free and Herbert Mays be tried again.
Jurors acquitted the trio of murder, robbery and witness tampering in the death of Ramod “Lamet” Gilchrist in October 2003 but found all three guilty of aggravated manslaughter. Prosecutors said Gilchrist was killed because he was dating Zwwiyya Moore, the mother of Free’s two children.
The judge sentenced all three to 30 years in prison, with a minimum of 25 years before any of them could be eligible for parole.
However, the convicted men contended that he should have declared a mistrial instead of simply replacing a juror whose fellow panelists considered a problem. The appeals panel agreed.
Before deliberations began, the appeals judges noted, the judge spoke in chambers to Juror 14 after noticing that she was “leaning forward in the jury box” and “appeared to be crying or sobbing.”
Juror 14 apologized and said that she was “just a little anxious” but was “able to proceed” and felt “well enough to deliberate,” the decision says.
Both sides asked that she be removed, but the judge said he didn’t see a legitimate reason to do so.
Once deliberations began, the lawyer for Mays told the judge he saw Juror 14 leave the jury room with a red face and swollen eyes, “indicating [that] she was crying.”
During a weekend break, the judge said he received a message from a juror who said she wanted to step down because of Juror 14’s behavior.
She Juror 14 told the others she’d gone online to determine the victim’s name and what type of sentence the defendants faced if convicted.
She also said Juror 14 held up a piece of paper before deliberations began with her verdict on it and was reading a newspaper in the jury room.
Although the juror eventually decided she could continue, the judge had reservations. Jurors had already deliberated about two and a half hours at that point, and “Free’s counsel continued to argue that the entire panel was tainted,” the appellate court wrote.
Pressed by the judge, Juror 14 denied any online research. She also said she read a headline about the case but not the article and said she held up the piece of paper because she was told to.
At that point, the appeals panel ruled, the judge should have declared a mistrial. Instead, he spoke individually to the other jurors to “make sure nothing occurred that would prevent [the panel] from going on and being fair and impartial,” the decision says.
Although all of them “said that they could continue to deliberate and be impartial,” some backed up all or part of the complaining juror’s contentions.
Prosecutors pushed to have Juror 14 removed on that basis while Free’s attorney, now joined by Mays’s lawyer, insisted on a mistrial.
Instead, the judge replaced Juror 14 with an alternate after determining that she “could no longer be fair and impartial,” the appeals judges said. “He also denied a mistrial, concluding that the rest of the panel showed no evidence of taint.”
The reconstituted jury rendered its verdict several days later.
“Removal may be used only in limited circumstances,” and shouldn’t have been done so in this case, the appeals court wrote. Death or illness qualify — but not an inability to get along with other jurors, the judges said.
“A deliberating juror may not be discharged and replaced with an alternate unless the record ‘adequately establish[es] that the juror suffers from an inability to function that is [exclusively] personal and unrelated to the juror’s interaction with the other jury members,” they wrote, citing precedent.
Juror 14’s problems were related to “her interactions with her fellow jurors,” and didn’t fall within the “inability-to-continue standard,” they said.
However, she had created a “pervasive” problem through behavior that “tainted the jury as a whole.”
“Accordingly, a mistrial should have been declared,” the appeals judges concluded. “Failure to do so constitutes reversible error. The error requires a new trial. “
The three argued other issues in their appeal, but the higher court said these could be addressed during a new trial.
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