New hearing, not new trial

The cure for an improperly closed Schwartz hearing is a new, open hearing, not necessarily a new trial, the Court of Appeals has ruled in a case of first impression.

The defendant has a right to a public Schwartz hearing on juror misconduct under the Sixth Amendment, the court said.

The unanimous court panel reversed the Hennepin County District Court in part and remanded for a new hearing on alleged jury misconduct in an opinion written by Judge Kevin Ross.

It means that Rodney Jackson, convicted of second-degree murder, will not get a new trial, at least not yet.

Professor David Schultz of the University of Minnesota Law School said that there appears to have been significant contamination of the jury and the court should have ordered a new trial, although it seemed unwilling to do so. Noting the state’s burden of proof, he said “the tie goes to the runner.”

Jackson was convicted of murder for shooting and killing a man at a gas station in Minneapolis. Jackson and the victim were involved in a fight that started because the victim’s car was parked in front of his car. Eventually he shot the victim and drove away. He and his girlfriend went to dinner and a movie and were arrested as they left the theater.

During voir dire, the prosecutor struck a juror who said that Jackson could be her family member or neighbor, that it would be difficult to judge him and that the justice system is unfair to black people. The juror and the defendant both are black.

The defendant raised a Batson challenge to the strike of the juror but the court found that he did not make a prima facie case that the strike was racially motivated. The court concluded that the strike was justified for nonracial reasons, including the juror’s statement that she was enrolled in a criminal justice class and instructions from the court would “throw her off” if they were different from what she learned in class.

After the verdict the court received a posttrial evaluation form from a juror saying that the state should have presented evidence on conceal and carry, the responsibility of self-defense and obligation to retreat.  The court said that the juror wrote on the form, “This jury was going for self-defense and not guilty before I shared [during deliberations] what’s taught in permit class.” (Brackets in court’s opinion.)

Before the Schwartz hearing, the Star Tribune published quotes from the juror-evaluation form revealing the reason for the hearing. For scheduling reasons, the court decided to bifurcate the hearing and ordered the first session, for only two jurors, closed to the public. The court later decided that the extraneous information did not affect the jury’s verdict.

Batson not backed

The court first held that the Batson claim failed because the defendant did not identify evidence that race influenced the prosecutor to strike the juror. The court said that the defendant only asserted that the prosecutor altered his questioning to focus on fairly judging Jackson and not fairly judging the evidence.

But the Court of Appeals said the prosecutor asked comparable questions of all jurors and both attorneys reasonably followed up with questions about bias when a juror’s information or answers tended to flag bias. “We hold that the district court did not clearly err by not extrapolating a racial motive from these apparently race-neutral and evenly applied circumstances.”

Sixth Amendment includes Schwartz

The court went on to find that the Sixth Amendment right to a public trial extends to a Schwartz hearing. A Schwartz hearing allows the judge, in the presence of counsel and on the record, to inquire about jury-conduct issues “while protecting jurors from being harassed by a defeated litigant.”

The court continued, “The evidence sought in a Schwartz hearing will answer the fundamental question of whether a party was denied a fair trial because of improper jury influence.”

Noting that voir dire procedures are open to the public, it is inconceivable that a Schwartz hearing would not be the same, the court continued. “The posttrial inquiry into the fairness of the juror’s primary duty of deciding guilt is … a substantive phase of the criminal trial, therefore implicating the defendant’s constitutional right to a public trial,” it said.

The court continued by saying that the judge was concerned about possible prejudice from media coverage but went on to say that other elements justifying closing a trial were not met.

The court did not consider the most reasonable alternative to closing the hearing, which was to instruct the jury to ignore media coverage, Ross wrote.

The judge did not narrowly tailor the closure, excluding everyone from the hearing, not just reporters, Ross continued. This excluded the defendant’s friends and family.

These two failures to comply with the elements for closing a trial meant that the hearing was improper, the Court of Appeals said.

Appropriate remedy

The defendant argued that the improper closure of the hearing is a structural error mandating a new trial.

The court agreed that the violation of a structural error is not subject to a harmless-error review. But it also said that the remedy for denying a right to a public trial should be appropriate to the violation, and a retrial is not required if a remand will remedy the violation.  Therefore, the court ordered a limited remand.

“Schwartz hearings … are fact-finding proceedings that, after a new hearing on remand, might not result in any need for a new trial. The public has no interest in retrying a murder case based on the district court’s improper closure of only a relatively small segment of the Schwartz hearing, involving only two of the twelve jurors and leaving only a possibility that a new and public hearing will result in different findings.”

If the two jurors testify in the public Schwartz hearing in a manner materially different from their original, private testimony, the district court should also conduct a new public Schwartz hearing involving the 10 other jurors, the court instructed.