United States v. Jessie Kenneth McKinney

RIVES, Before GOLDBERG Judges. GODBOLD, Circuit GOLDBERG, Judge. apprehension. subsequent Conse- Circuit quently, in his motion for new appellant en- case the In this criminal July 8, filed on coun- the cloister to invade treats us following point: sel included the ver- whether the to determine room may guilty substantially in the court below “The defendant was dict of by prejudiced deprived influenced and of a fair trial following equal fervor newspaper publicity. reason of the circum- With government implores not to enter us stances : the aged invoking cloister, hal- the and the jury “The members the discussed of jury sanctity principle of of the lowed jury offered in the room evidence not Eschewing obedi- blind deliberations. the or into evidence admitted as reject salutary principle, we ence to this guilt defendant, of in or innocence government’s imploration. Firm in jurors recognized defend- rare of those that this is one our belief person being ant as one and the same of a ventilation which demand occasions escaped who from the Harrison Coun- precincts of jury’s in the interest ty jail jail and that such break was justice, for a determination we remand highly publicized in all of the news regarding deliber- facts Tex- media in the Eastern District of application of such and for the ations therapy as, territory being ju- within the said may require. the facts as this from which risdiction of Court drawn, jurors the fact said were and among jurors them- discussed that the I. escaped defendant had that the selves February 3, Kenneth Jessie On County jail the Harrison several from entering McKinney indicted was prior and discussed weeks larceny in with intent commit bank apprehension to the return his 2113(a). of 18 violation U.S..C.A. § County jail, influ- doubt no Harrison charge awaiting on While McKinney escaped guilt or as to the enced their decision the Harrison defendant, and that innocence May Marshall, Texas, County on in Jail outside facts of these such discussion apparently escape re- 1966. His irreparable harm did record coverage newspapers in extensive ceived defendant, harm can being apprehended After the area. granting motion cured custody en- of law and returned to discussion trial. That such for new McKinney officials, forcement the misconduct facts the above brought States to trial been confirmed District for the Eastern District Court attorney court-appointed defendant’s sitting in Mar- Texas—the Everett, juror, who F. Thornton July shall, 1966. On Texas-—on Marshall, Drive, Acorn at 102 resides plea date entered a Texas.” selected, guilty, jury the case in the record indication McKinney There is no tried, found affida- counsel offered guilty, him to and the court sentenced support of this or other evidence vit years. twenty term of apparently re- did not He contention. sentencing, Mc- After conviction and hearing, did not quest the court Kinney’s appar- court-appointed counsel hearing. The motion hold a ently who had a discussion with July trial was overruled jury had members of the told him that overruling motion order The court’s newspaper stories recalled specifically mention the issue did not McKinney’s May jailbreak merely misconduct; recited things escape overruled.” among “in all his the motion was themselves discussed court,1 principles deeply ingrained appeals to this which are now ground jurisprudence. begin urging our on the We a reversal very concept the determi have reached could not “the guilty guilt ner inno- or innocence in criminal or decision as unbiased concept since At appellant in this case trials. heart of this cence breaking jury, jail the notion that drawn record from the discussed populace them.” evidence before determine whether one ac which was urges punished cused of crime us to affirm will be will ground go free, solely should make its decision conviction disposed correctly on the basis of the offered evidence open judicial do court with all safe misconduct. We guards party’s position. In- there adopt afforded. As Mr. Justice either given, Supreme stead, Holmes wrote Court hereinafter for the reasons sixty years ago, the more than court for theo “[t]he we remand to the district hearing ry system holding evidentiary our con- is that the conclusions alleged jury cerning to be reached in a will induced misconduct. only by argument open evidence and in II. by influence, and not outside private print.” public whether of talk or prejudicial problem news The Colorado, 1907, Patterson v. 205 U.S. many differ publicity in paper can arise 454, 462, 558, 879, 556, 27 S.Ct. 51 L.Ed. ways, are and these situations ent 8812 categorization. easily susceptible of therefore, course, surprising, recognize, that a All must sanitizing diffi jury room present find somewhat complete case we parallels expunge fac from with the impossible. cult to draw exact We cannot opin- by subjective cases. presented other tual situations deliberations general however, by exposi- guided, jurors, are their attitudinal We ions of delay long years 1. between convic after the date four explain present appeal is his in 1966 and tion. following A circumstances: ed McKinney conviction, days bas- his of this after reaffirmation few 2. A more modern custody Texas, escaped Briggs again principle from in but v. United is found in ic apprehended 636, 638, quickly 1955, States, in Tennessee 221 F.2d 6 he Cir. eventually to the Unit stated: delivered Circuit and was which the Sixth Leavenworth, Penitentiary rules of crim- States the fundamental ed “One of McKinney’s escape in a his crimi- After is that defendant Kansas. inal law by jurors appeal con made no his to be tried effort nal ease is entitled counsel September 12, 1967, submit- McKin the facts On ‘should viction. who determine wholly ney of- the evidence in the district a motion to filed to them ted pursuant open court, unin- and his sentence 28 unbiased vacate fered may grounds by anything they of his § 2255. One O.A. fluenced right appeal. had been denied the outside of the actual or heard seen States, with v. United district court denied the motion Stone of the case.’ appeal evidentiary hearing. Cir., 70, 77; v. Mattox out an On 113 F.2d 6 reversed, holding States, (1) that Mc United 50, Kinney right appeal 917; v. Wheaton United had not lost his 36 L.Ed. 527; escape (2) Cir., States, Little virtue his remand 133 F.2d 8 Cir., question States, for a wheth 10 F.2d v. United 73 appeal. McKinney had his er abandoned 864.” States, Very recently v. this court had occasion United 5 Cir. “[i]t F.2d 57. On the district cases remand state that criminal govern- evidentiary hearing principle ap held court parently fundamental establishing guilt concluded that has the burden ment solely pi'oduced appeal. Consequently, of evidence not abandoned on the basis 24, 1969, the court and under circumstances on March entered an in the courtroom assuring safeguards allowing him take an accused all the order appeal. out-of-time States, appeal Farese United Thus a fair trial.” us, his conviction now before almost Cir. 1023; Seng Seo, in- philosophies. tions, These United States v. Kum their 623; Briggs very Cir. v. Unit- human elements that con- volve strengths ed F.2d 636 of our stitute system, should we cannot and Supreme rel- decision most Court jury delibera- them from excommunicate present evant case is Marshall may Nevertheless, while tions. supra. Marshall its wisdom its deliberations leaven a federal defendant was convicted in doing must experience, so it unlawfully dispensing court of tablets bring room. into the extra drug prescription facts a certain without every must endeavor case we criminal physician. from a licensed His convic- “testify” do not Circuit,5 see upheld tion Tenth jury room confines Supreme Exer- but the Court reversed. specific specific defend- facts about cising supervisory power over its system adversary on trial. ant then Our courts, granted federal the Court testimony presupposes courtroom trial because of reject of testi- the transfusion and must publicity. per opinion In a curiam aegis. beyond judicial mony adduced background Court delineated factual possible, greatest all fac- To extent prejudicial publicity issue through testimony pass tual must follows: sieve, judicial fundamental where the never “Petitioner took [defendant] guarantees procedural protect law stand; nor did evi- he offer rights those accused of crime. government agent dence. A testified petitioner keeping fundamen that these he was introduced to with diligent difficulty stay- precepts, courts as a who had tal have been salesman long trips attempting juries as much as on to shield awake automobile newspaper pub humanly possible and on two occasions he obtained from defendant, petitioner. licity prejudicial for these from Peti- tablets recognized repeatedly judge tioner rule asked the trial has been prejudice entrapment publicity there newspaper can so as a matter judge fair trial law. to hold that a refused so deliberations entrapment re can submitted issue unattainable. Such a situation preju atmosphere appropriate total, instructions sult from a barrage States, jury. Maseiale dice created constant Cf. v. United 827, press coverage, Sheppard 386, v. Max see 356 78 2 L.Ed. U.S. S.Ct. 1507, well, 1966, 333, 859. al- 86 S.Ct. The Government asked to be 384 U.S. 1961, 600; Dowd, prove petitioner had 16 lowed to L.Ed.2d Irvin v. 717, 1639, previously practiced 6 81 L.Ed.2d without 366 U.S. S.Ct. medicine 751,3 tending specific newspaper license, articles the de- or as to refute judge entrapment. of members fense of come to the attention The trial which saying, jury, United this offer ‘It would be see Marshall v. refused 1171, just offering 310, States, 1959, 79 like evidence that 360 S.Ct. U.S. 1250; picked pockets petty v. or or Mattox United was a thief 3 L.Ed.2d 50, something 1892, 140, States, would of that sort 146 13 S.Ct. which U.S. Reid, 917; bearing on 36 United v. have no the issue L.Ed. States (12 361, How.) 1851, issue 13 L.Ed. would tend to raise a collateral 53 U.S. recently noted, present Although 4. As “[e]ases 3. does not in- this court publicity spectacle publicized which reached the adverse has carnival or as volve a jury, thereby necessitating press Sheppard a new of an en- saturation States, legion.” community warnings 5 Irvin, v. are Farese United tire in. 178, 1970, n. 2. are not without and caveats those cases application v. here. See also Rideau States, Marshall United 10 Cir. Louisiana, 1963, (2-1 Judge U.S. 83 S.Ct. decision, Murrab 258 F.2d-94 dissenting). 10 L.Ed.2d 663. greater prejudicial may I think would be indeed be proce- by protective tempered the defendant.’ then not dures. newspa- “Yet two got supervisory containing our pers exercise of such information “In the proper apply jurors. power a substantial number of formulate before enforcement

standards federal courts criminal law learning judge “The trial (Bruno 308 U.S. United had reached these news accounts 257; McNabb L.Ed. them summoned cham- 63 S. v. United inquired if ber one one and 819), we think a L.Ed. Ct. seen the Three had read articles. granted.” at be trial should [newspaper arti- the first of the two 312-313, 3 L.Ed.2d read Three and one had both. cles] at 1252. ar- others had scanned first has The Marshall decision served ticle and one those had also seen duty the federal courts accentuate Each of the seven told second. preju- guard against the effects of that he would publicity. As dicial articles, influenced the news said, may Third “whatever Circuit he could decide the case Marshall, prior law record, evidence of no and that he felt clear since that decision it has been prejudice against petitioner as a re- granted in federal a new trial should be judge, sult of the articles. criminal cases when it is shown that stating prejudice he felt no there was read ac- members of the news petitioner, denied the motion for counts” include inadmissible facts 311-312, mistrial.” 360 U.S. at 79 S. to the defendant. 1172-1173, Ct. at 3 L.Ed.2d at 1251- Seng Seo, 1962, States Kum Cir. v. 3 1252. 623, 300 F.2d 625. See also Holmes v. Supreme disagreed Court with States, 1960, 716, United 4 Cir. 284 F.2d disposition trial court’s of the case and 718. granted trial, explaining a new its ac- post opinion A -Marshall of the Fourth following tion in the words: gives guidance concerning Circuit us judge large proper trial “The has a discre- attitude to be exhibited ruling in preju- problem tion a federal on the issue of court when the resulting reading by ju- prejudicial newspaper publicity dice from the arises newspaper published rors of because of news articles articles prior States, to trial: Holt v. United 218 251, 245, 2, 1021, 31 54 S.Ct. L.Ed. shortly appears it “Whenever 1029, 20 Ann Cas. 1138. Generaliza- public news media before a trial beyond tions statement are not published community incom- profitable, because each case must petent prejudicial information special turn on its facts. We have defendant, duty the case or the about exposure jurors here the to infor- upon the trial court to make devolves mation of a character which the trial necessary certain that conditions ruled so it could impaired. of a fair trial have not been directly not be offered evidence. jurors closely as Prospective should be prejudice to the defendant is they al- examined to determine whether great most certain to as exposed be when that improper to the in- have been jury through evidence formation, so, reaches and, they if whether part news lay accounts as when is can aside what been heard * ** prosecution’s reaching Mich- Cf. a verdict. If the evidence. States, 469, elson publication United v. 335 U.S. shown to have reached is 475, 213, 168, jurors, 69 prospective S.Ct. L.Ed. should be courtroom, jury any in the in the room doubt about but is if there excused discovery none. partiality. When their jury after is is made events such allegation, Faced with mandatory sworn, trial then new should the court have what trial done? can affirma unless the Government We think the answer is obvious. As tively could not show case in misconduct by it. See Mar affected in the defendant’s motion for 310, 360 U.S. shall v. United trial, the trial court should have * * * (1959); 1171, 3 L.Ed.2d 1250 investigation “a full conducted 50, Shepherd Florida, 341 U.S. in order whether determine inci- (1951) (con S.Ct. L.Ed. 740 alleged, and, so, dent occurred as curring opinion). In the in latter be can said with assurance upon stance the the de burden Wright, to have been harmless.” Fed- prej fendant to establish that he was eral Practice and Procedure at § thereby.” udiced States (1969). 491-92 Milanovich, 303 F.2d previous Two cases illustrate the care 629-630, denied, cert. which this court has taken to see that L.Ed.2d 115. allegations misconduct receive adequate investigation. full present confronted we are Richardson v. United 5 Cir. allegation, raised after first with allegation was made in news- included information in the motion defendant’s for new trial published prior paper articles that a witness had privately conversed room invaded the jury. a member of the We re- thereby. prejudiced holding manded for hearing, of a factually allegation If doing and in so we stated: correct, escape from the of his evidence “The of fact third jail not offered that was local —evidence ground of the motion witness prosecution trial —came engaged private Treherne con- attention of the as result versation with must dan- accounts. earlier no stand confessed since ger prejudice from such information Prejudice will as- conducted. Moreover, readily apparent. as the sumed in the form of a rebuttable Marshall, Supreme observed Court States, presumption. Brown v. United prejudice to the defendant is al- “[t]he (6th 1955) ; 224 F.2d 845 Cir. Johnson great [preju- most certain to be as when States, F.2d 207 322 through evidence dicial] reaches (5th 1953); Ryan v. United part news accounts it is a as when * * * States, U.S.App.D.C. 328, prosecution’s evidence. (1951); cf. Turner greater v. State of may indeed for it is not then be Louisiana, tempered by protective procedures.” 360 (1965). failing 13 L.Ed.2d 424 to 312-313, at U.S. 79 S.Ct. 3 L. * * * thorough inquiry conduct ‘a (case omitted). Ed.2d at 1252 citation * ** exactly to determine what McKinney’s flight If evidence of overruling occurred’ before jail mo- would have been admissible as tend- tion, the trial guilt, abused its dis- to show it should have been cretion. States, Johnson v. United received the courtroom rather than supra, 207 F.2d at 322. room. In the courtroom McKinney would judgment entitled have been to therefore affirm the “We judicial safeguards right conviction, such as the to vacate the order of the cross-examine, opportunity denying ex- to district the motion for plain flight, perhaps limiting trial, his a a new remand case to clearly instruction the court. He the district court with directions procedural rights would have hearing had these hold a to determine complained proper disposition

the incident to be the ground appellant’s Richardson v. United third motion case. See alleged govern- and, supra, so, occurred if 360 F.2d at 369. argu- him, ment, however, harmful several and if after advances attempt uphold is found to have occurred and ments the trial harmful, grant summary court’s ney’s treatment of McKin- a new trial, trial. Remmer motion for new and to those v. United arguments we turn. now L.Ed. 654 (1954).” 360 F.2d at 369.6 III. Morgan States, 5 Cir. v. United arguments government’s several the defendant’s mo principal conten- two alleged are improper subsumed new trial tion for the issue (1) tions: newspaper conversation and a non- between properly publicity be “cannot juror. judge, examining The trial after by a motion first time raised for the jury sepa each of rately, the members verdict,” (2) trial after the for new denied the motion for new trial findings raise this can explaining even and filed of fact issue, did not abuse its the trial court findings denial. We concluded that the denying the motion new specific enough discretion fact were al follow, For the precision reasons low us to determine with his reject both contentions. motion, reasons for denial of the we therefore vacated the denial and re A. findings manded for additional of fact. government’s initial contention Implicit in these as cases is the inquiry centers around crucial —wheth- sumption that when misconduct is er the actions of counsel alleged in the defendant’s motion for during the voir dire examination of the duty jury panel Mc- constituted waiver of following to take the actions: he must Kinney’s right raise, after the ver- investigation

conduct a full to ascertain dict, prejudicial publicity. the issue of alleged jury whether the misconduct ac original In its brief tually occurred; occurred, if it he must argu- advanced its waiver determine whether prej or not it was ment in these words: udicial; unless he concludes that it was Appellee position clearly “It is the not prejudicial, grant he must knowledge ju- motion trial; for new if he con prior Appellant’s crim- rors as to cludes that it did not occur or properly cannot clearly inal activities prejudicial, he must by motion spell first time raised for the out findings adequate trial after the verdict. Coun- specificity for new meaningful appellate re Appellant ample op- sel for the view. inquire portunity to about and discov- present case, In the during we think er the dire voir examination evidentiary is clear that an jury panel any jurors of the investigate should have been held to knowledge Appellant’s prior of the the McKinney’s motion for escapes or of other criminal conduct new trial. Since the trial did court part. on his He would have been fur- hearing, hold merely such but inquire entered ther entitled to as to whether overruling an order motion, the knowledge might a re preju- such have mand to the trial court appear would or diced influenced the of decision 6. For the ultimate outcome Morgan of the Rich- 7. For the ultimate outcome of the ardson case Morgan see Richardson States, case see v. United 5 Cir. 5 Cir. denied, 399 F.2d cert. 393 U.S. 89 21 L.Ed.2d 568. response jurors, bias then filed any prospective and disclosed, supplemental brief, to such prejudice had been and or argument vigorous- parties oral the excused for have been could ly disputed if, upon adequacy Furthermore, exami- the the voir

cause. dire jury panel, examination. it had been nation of the there was a wide- discovered issue, deciding note this knowledge spread Appellant’s preju possibly at the outset when

prior escapes and other criminal con- pub dicial articles duct, Appellant the could have avoid- the were lished before by ap- ed the effect case, this the counsel clear defendant’s change propriate motion for of venue ly duty to the issue of has a see that or for continuance. during publicity explored the the voir ques dire examination. “The ultimate Appellant’s duty “It was possible tion to is whether select by proper ex- ascertain to impartial counsel jury, prop a fair and and the jury was time the at amination er for such occasion determination any prej- existence empaneled the upon the voir dire examination.” Blu pro- part of the udice or bias menfield v. United 8 Cir. having failed to jurors, spective and 46, 51, denied, cert. ob- such so, raise cannot now do 5 L.Ed.2d 692. might dis- been jections would be an aberration in the adminis presented seasonably covered justice tration of criminal if counsel for orderly admin- the trial court. simply defendant could remain silent justice that de- demands problem istration about pre-trial publicity them- required avail fendants be the voir dire examination procedures established then selves assert the existence the publicity designed protection afford for the first time after an adverse ver prejudice in this type dict. thereby giving case, however, present case, In the the rec- the, opportunity to consider ord indicates counsel measures and take the remedial issues attempt explore prej- did the issue necessary. Appellant in this publicity udicial course of opportunity utilize declined to voir dire examination. Pursuant investigate proper time custom of the examina- knowledge possibility jury panel tion of was conducted Appellant’s prior as to the attorneys than rather conduct, criminal did move panel court. The members of the were continue obtain a examined en masse. At the outset change venue, and, therefore, remarked that ap- would “[w]e ques- should not now be entitled to preciate attorneys’ cooperation tion the verdict of the on this expediting the voir dire examination as basis.” possible.” Thereupon gov- much as injected government had attorney, Trickey, ques- Once ernment Mr. argument appeal, it became the tioned panel. the members of the case, hotly disputed At most issue questions, conclusion of his Mc- par- flurry activity Kinney’s attorney, Ray, and a both began Mr. question supple- prospective filed a jurors. ties ensued. At one accompanied by supple- point brief, during questioning mental his the court record, claiming that Ray, you ment he had commented: “Mr. can ex- given adequate opportunity pedite an not been appreciate little bit we will question prospective Shortly Ray it.” thereafter Mr. turned newspaper publicity. pre-trial about publicity, issue so, following guilty point? If not at this him please that shows record your hand. respect raise that issue: transpired with you you any read Do feel like—and the reason I Have “MR. RAY: asking you question concerning am this Mr. Moore newspaper articles you McKinney not but to embarrass because Mr. crime which experience you have had Moore, considerable charged? Mrs. Johnson. Mr. matters, you Wier, do feel like Mr. these Mr. any Mr. others? there Are 'McKinney you by would have to show Castloo, Da- McClung, Mr. Mr. Charles some evidence— Any ? others vis. already THE You COURT: have answered have you who Those question panel asked that and no something about you read have

that opinion. expressed ques- It is you this case, askme let this necessary specific ques- not to ask ready you [sic] have After tion: tions. news- you read have that I assume articles, that be correct? si- Mr. Moore’s would I take it paper MR. RAY: indicated). me ask Let ‘yes’ (a lence— you any of Have question: additional si- and the silence His THE COURT: programs which any television seen members the other all lence something con- may have broadcast they not be would jury panel, that you cerning recall? that against the defendant prejudiced question: him you next consider ask would I that will may newspaper anything they article you guilty read the After any about you conclusion seen.” come to heard or did read or have you did, you would If case? argues McKinney appeal On you your hand, if please came raise attempting examine counsel was his guilt or any conclusion about jury panel individ the members of ually man who sits here? innocence publicity, and pre-trial your you please raise hand? Will by the trial court. “cut off” that he was you any like the infor- feel reading Do of the record a fair We think you mation read the news- which McKinney’s interpretation of supports paper tend Mr. to show that would proceedings.8 It is obvious guilty or innocent of through in explanation counsel wanted charged? with which he is crime bloc rather than en dividual comments me-too-ism. individualization Such you any way Do feel about however, blocked, indi when point it at this because of the news- clearly cated it would not allow you paper read article ? exploration further prejudicial publicity by way of the matter of put questions Would Mr. have to you evidence to directed show to individual members guilty, you jury panel.9 order for find government really genre, 8. Even does here to examine eases of dis- pute McKinney’s interpretation of the rec- the issue before is not whether voir us Although government adequate, ord. contends dire examination was but McKinney’s counsel, by the action of the trial court was his con- completely proper, dire, voir charac- duct waived McKin- right objection ney’s terizes the court’s action as a to make after “denial of request pub- to examine each member verdict to the infusion of panel individually.” licity into the room. Nevertheless, we do offer the observa- responses Numerous cases can be cited in which tion that collectivization of always proper safeguard, trial courts and the have exercised more care procedure examining the individual weakness inherent such a members of jury panel glossed than did the trial court should not be over. As the First present “posed However, pause said, question case. we do not Circuit has apparently government say the means to voir the record In of view holding that in examination, the of a this hold that cannot we dire - require jurors “im- case the to McKinney’s would counsel dur the conduct of peach ing their verdict” because the trial a waiver the voir dire constituted required right court would be to delve into the issue of to raise process by juror reaching the mental publicity. each In of decision on the verdict. This result, reached do not this as a his this we view lay generic case, attempt is The court need the all. nor do we to process inquire mental of applicable into the down rules to all times juror; any it merely need determine the all situations. We conclude that record, case, of a existence or non-existence demon- on this cannot strable, objective fact, e., accept government’s position i. discussion the raising by jury pre-trial barred publicity. is from of the is the This sue. thought act, not a hidden is overt single process ju- the mental B. Analogous elicit- situations have ror.10 contends, however, government previous inquiry in eas- post-verdict ed that even if can raise the is- example, States v. in United es. For growing sue of misconduct out of Seng Seo, 300 F.2d 3 Cir. Kum prejudicial publicity, the trial court did jurors permitted to trial court the denying abuse its discretion Mc- the testify member Kinney’s sup- motion brought article the port major gov- of this contention the article had been room and ernment advances three alternative ar- guments. passed the room and discussed around reviewing jurors. some of contends First, accepted tes- Third Circuit case the summary denial of court’s jurors timony the factual as ba- “supported for new trial the motion Similarly, deciding appeal. sis for policy federal the historic prop- it present think case we sanctity protect courts to validity Although precise to the factual er ascertain deliberations.” "clear, argument are not asking contours panel bloc, long ago recognized with absence of re en as were acts way sponse, nothing by Supreme little achieves or of Kansas stat- Court when removing any identifying, weighing, of prejudice or :ed prior publicity.” policy Patriarca a matter forbids “Public personal resting consciousness denied, 314, 318, cert. be received to over- one should per- verdict, being The First L.Ed.2d 567. because throw the Circuit further stated: it to other testi- sonal accessible is, opin- thought mony ; gives “In where there cases to the secret possibility significant power expressed ion of the disturb one jurors exposed poten- twelve; tendency conclusions of its tially prejudicial material, part and on re- faith of mi- bad induce quest counsel, apparent acqui- nority, we think that the court to induce an proceed prospec- subsequent purpose should examine each with escence juror apart tampering dissent; tive from other with indi- to induce prospective jurors, jurors subsequent with view elicit- to the verdict. vidual degree exposure acts, the kind and of his to overt are accessible But as parties, knowledge jurors; the ease or effect of all exposure present remaining misconduct, such state of one affirms mind, deny; and the extent to which such state cannot disturb the eleven can subject mind immutable twelve; is useless action of Id. change from evidence.” one, may tamper for the eleven Perry Bailey, Kan. Compelling policy allowing heard.” 10. reasons questioned concerning to be overt 1030 no choice but to hold that the we have whether al- of the

members denying actually place.11 court discretion in abused its leged took discussion McKinney’s for new motion trial. See attempts next States, supra, Richardson v. United failure to to defend the trial court’s hold F.2d at 369. therefore We remand with hearing ground McKinney directions to the trial court to hold an adequate did not factual make an show evidentiary hearing on the issue of motion for at trial. His new trial misconduct. by any unaccompanied supporting was evidence, other and it affidavits or government’s view that “the motion IV. inadequate on its face to even was raise point dis merits One additional question a substantial as to the issue holding remanding for cussion. possibility prej of misconduct or the hearing, evidentiary obviously of anticipate arising udice agree. therefrom.” We cannot of the will members allegation McKinney’s mentioned noted, questioned. be It should be how specific jury discussion of a incident as ever, jurors questioning of the McKinney’s allegedly related counsel issue, should be limited factual by specific juror, name and whose ad e., i. whether a discussion of given. import The factual dress were escape County jail Harrison allegation clear, of the the inclu place did in fact take sion of the in the motion for regard deliberations. With to the sec supporting new vits, without affida question ond to be answered—whether procedurally inappropria was not discussion, place, it did if take was te.12 McKinney opinions —the argument government’s final nothing would be more speculation based juror’s than each evaluation of his own denying Mc- court’s reason processes. mental would not Thus it be Kinney's motion for new trial. The proper any to ask whether he government suggests that the trial court support guilty thinks his vote in predicated denial of must have its verdict was affected the discussion finding that, motion on a jury even if the jail. escape from On the McKinney’s jailbreak, did discuss contrary, the court itself must de prejudiced by was not such question prejudice cide the on the ba indulge discussion. We decline to independent sis of an evaluation of all however, speculation, because the the circumstances of the case. As the any record before us is barren of indi- Second Circuit stated in a somewhat go cation that did in fact situation, question similar of wheth through reasoning gov- which the er “relied on the for appeal.

ernment has constructed on As knowledge” bidden should determined reveals, far as the record the trial court “on the basis of the nature of the mat prejudice. never reached the issue of probable hypothet ter and its effect on a jury.” Crosby, ical Since the never trial court United States v. conducted investigation gen to ascertain Cir. F.2d 950. whether See McKinney’s allegation erally 949-950; id. at miscon- Braswell v. cf. factually and, duct United correct was, Therefore, 602. prejudiced, if the trial after Wright, opinion. 11. But see Part IV Federal of this Practice Procedure (“Because (1969) § at 491-492 g., possible See e. seriousness Richardson v. misconduct af- fecting (“The jury, 5 Cir. legation must make a al- investigation ground ground full when such of fact in the third * * * motion on a a new trial [for new motion trial] must * * (emphasis *.”) added). stand as confessed since no conducted.”) (emphasis added) ; jurors, in what he said the motion for new trial testimony deter- hearing the years three earlier. a discussion mines that during jury’s place the jailbreak take did says a The fact alone that motion that deliberations, make its own it must then something in evi- the discussed not McKinney as to whether determination compel judge does not the district dence thereby. prejudiced was inquiry if the convene an and ask to alleged in foregoing, of fact was made light statement re- of the was, and, inter- room if it then fol- mand to the district with the rogate possible preju- lowing about (1) shall directions: The court judicial district mind a evidentiary hearing dice. The hold an to determine required judge that undis- alleged is not to be the discussion Mc- criminating aspects in of the trial other Kinney place took de- aspect. process in this and need not be (2) liberations. If the court that finds deny judge’s to The district discretion place, it did take the court then shall inquiry motion or to conduct an determine whether discussion was range. in But this be narrow McKinney. regard should With say no discretion issue, that he has to this unless the court that finds respond in Pavlovian clearly bound prejudiced, was Nor, appellate level, are at the grant fashion. the court shall the motion for new stripped power (3) to conclude on (a) we If the court determines alleged time that the convic- record at this that this discussion did not take place (b) clearly tion should be affirmed. that was prejudicial, the court shall enter fact applicable are considerations There findings adequate explain fully its de- give guidance, judge familiar nial motion for new trial. employed in other to him and contexts threshold, question. At It without is so ordered. allegation come to how does judge’s ru- Is it courthouse attention? GODBOLD, (dissent- Judge Circuit official, report mor, a court a ing) : juror, motion? of a a sworn affidavit willing put my I hearsay? am not sanction hand or a recital Is it first bringing case, in The unsworn motion interrogated digni- ground, case to be about said events as one hearing by request have occurred in their a or offer deliberations for fied ago. years predicate more than four proof, for man- a slim investigation. dating Richardson v. quarrel No pol- would with the (5th icy that conclusions of 1969) speaks pre- of a rebuttable upon should be reached the evidence prejudice, not au- sumption but prob- unaffected extrinsic facts. The thority presumption arises from a application lem is the principle filing any motion without the fact sweep this case and the broad regard contents. form or to its majority’s language which reaches far Richardson the motion was verified. beyond presented the factual context private conversation us for decision. juror and corridor between courthouse unsworn motion filed an Counsel of the conver- The content a witness. ground of which was opinion, not described sation is juror had an identified statement mo- presumably not stated was so de- told him the discussed investigation Thus an was either. tion jail fendant broke before required. caught No affidavit and returned. might hearing contend In this asked. No filed. verify the mo- appel- his counsel to failure of attached court an affidavit from him- an affidavit or submit restates tion counsel lant’s brief (1959), for a 3 L.Ed.2d 1250 self or the or call drugs charge dispensing question presents involved a effectiveness newspa- prescription. If raised that is a mat- without Two counsel. ever got jurors. adjudicated pers' physically pro- in a before ter to be § ceeding They had defendant sub silentio and should not be revealed license, appeal practiced without a in this direct medicine a basis shift- judge. proof offered to the trial the onus matter on which been inadmis- the and court had held which Next, of al- what is the content the begin- only the sible. But was leged likely it fact —how harmful is to ning. newspapers de- the revealed impact jury? been in on have its the felony previous con- two fendant had judicial recognize trained mind can forgery serving victions, that while a difference fact the between the extrinsic legis- to a state he testified conviction Episcopalian, the defendant is an drug studying lative committee country club, or a member of the and he the which laws ease with the extrinsic fact that he committed dan- passed prescriptions for wrote and rape last In this week. instance what gerous wife, drugs, who and that his jurors the are have said to discussed— drug him on had arrested with been jail before trial— broke and already charges, been convicted had under Texas law would been ad- sentenced. prove guilt. Cawley State, missible to Milanovich, (Tex.Cr.App.1957). F. S.W.2d United States 1962), post-trial Supreme (4th United the Court of States 2d 626 Cir. the judge presented of. is the same Bird v. view. information to a as to “of such character U.S. 47 L. held investigation.” (1902). for It was that Ed. call prosecutor supplied sta- had to radio a The extrinsic fact in this is not attorney asser- he was tion for which shocking harmful because to the senses. (charged defendant tions that Its content not so unrelated to as long larceny) record of arrests had probative lack force as to the offense prostitution, and liquor sales charged punishment and hence to invite least at these were broadcast assertions is, of defendant for rea- because before three times week charged, than sons other the offense socially part undesirable. It of Seo, Seng barrage propaganda v. Kum an invidious of or United States 1962), a heroin atmosphere prejudice. (3d a total F.2d 623 of It Immediately something before the vote case. as members of the brought guilt community circulated innocence or knew and to among clipping jurors a a news- minds, courthouse within their own prog- something describing story integrity paper destructive un- process, newspapers told that defendant as taken ress. It bail, room, $100,000 neither into the which was information fur- der by admissible, bailiff, private nished stated or the con- nor evidence room, as- prej- versation with found her the witness. heroin was udicial, all, but con- evidence because it came to the sertion inappropriate way trary attention in evidence. to the actual opportunity by without the defendant these did the In none of cases limiting seek instructions ef- as its content of the extrinsic consider fect. In each the court irrelevant. facts was what in careful detail considered Comparison of this case with those on jury. communicated to the been majority rely graphically which my demonstrates in this case the extent not involved as- There is therapeu- salutary principle. necessity to take sociates attenuate the court integrity its protect Marshall v. United tic action capable appeal. We are another processes, in the instance as own pos- judging there is sufficient de- about talks bailiff who sibility require prejudice to reversal. prosecutor in Milano- fendant, or vich. Bearing exercise of discretion on the Judge, the District weight oth- is the factor Another government brief tells against I note Where the accused. er evidence choose, us, verify overwhelming if we can guilt and we other evidence recanted, was the trial Nix capacity that after' recognize guilty perjury pleaded im- indicted for judgments about make matter thereto. extraneous pact attention, brought its improperly affirmed should be This conviction argument improper in the case respectfully I laid to rest. the case prosecutor volunteered state- or the dissent. appellate At a witness. ment of power affirm where we have level sufficiently weight of evidence California, Chapman great. v. Cf. 17 L.Ed.2d majority approach of the (1970). The and this district court denies both Chapman employment of the stand- GORSALITZ, William Plaintiff- Richard beyond all rea- error “harmless ard of Appellee-Cross Appellant, doubt” until the district sonable questioned in and has called CORPORATION, CHEMICAL OLIN MATHIESON in this testified

them. Three witnesses ant-Appellant-C Defend girl friends Two were Appellee, ross traveling companions appellant They Nix. testified his codefendant CORPORATION, ELECTRIC GENERAL they accompanied and Nix to Party Defendant-Appellee, Third them enter and the bank and observed Liability Insurance Com Electric Mutual Nix, The third witness was who leave. Intervenor-Appellee. pany, pleaded guilty before trial. He took No. 27807. sought the full to exonerate blame McKinney. Appeals, States Court of Fifth Circuit. knee-jerk

A rule this matter tends 17, 1970. de- June to inhibit discussion for the easiest course liberations. Rehearing Rehearing Denied and En dialogue stay will be to out of the Aug. Banc Denied say an ex- that he revealed lest someone might trinsic cause him fact which inquiry. post-trial be called back worse,

Perhaps automatic rule in- every

vites the convicted defendant engage post-trial criminal in a case to ransacking may- see if something somebody said evidence,

wasn’t with the sure knowl-

edge anything up turns questioned.

must be necessity

There no to remand rule on

case to have the assuming

prejudice, event occurred, predictably to be followed

Case Details

Case Name: United States v. Jessie Kenneth McKinney

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 1, 1970

Citation: 429 F.2d 1019

Docket Number: 27634

Court Abbreviation: 5th Cir.