The Fourth Circuit And The Juror Who Called The Press

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The evidence in Brandon Basham's 2004 South Carolina federal trial was that he confessed to taking part in separate killings and apparent kidnapping of two women. On appeal of his conviction and death sentence, the Fourth Circuit was faced with those grim facts on the one hand, and a startling instance of jury misconduct on the other: a one-woman media campaign by the jury foreperson, during the trial. At a time when many people are concerned about jurors' communications on Twitter and Facebook, this story of a juror with an old-fashioned telephone shows how difficult it is to upset a verdict when jurors send information out of the courthouse rather than bringing it in.

Your juror reporter on the scene

As today's Fourth Circuit opinion tells the story, soon after the verdict was in, a producer from Greenville television station WSPA contacted the trial judge. The producer said that the juror had, during deliberations, "called and asked why WSPA was not covering the trial. The woman also told the producer she believed the jury would have a difficult time reaching a decision in the penalty phase because there were several jurors for and several against the death penalty. She also informed the producer that Basham had 'acted out' in court and that there were some jurors from the upstate [region of South Carolina]."

The trial judge then questioned the juror, and learned the one call wasn't all:
After consulting with counsel, the jury foreperson, Cynthia Wilson, admitted to calling not only WSPA, but also two other television stations while the trial was in progress. Wilson claimed that she made the calls in an effort to have the media do a profile piece on the dangers of shopping alone at malls.

When the phone records came out, there was even more. "Wilson made a six-minute call to WSPA, two one-minute calls and a four-minute call to WHNS Asheville, a two-minute call to WYFF in Greenville, a two-minute call to the Greenville News, and a one-minute call to the Spartanburg Herald. These latter two calls to newspapers had not been reported by Wilson during her initial testimony." And more: "seventy-one calls between her and two other jurors from September through October 2004," including calls on days of critical testimony. But Ms. Wilson insisted no one had given her any information (including her husband, who admitted he had researched the case). Somehow in the nine different post-verdict hearings on this issue in the district court, no one asked her what she told the other jurors in her 71 calls with them.

"Minimal"

The Fourth Circuit started by recognizing its own rule that when jurors communicate inappropriately, prejudice is presumed, and new trials are ordered unless the Government shows there is "no reasonable possibility that the jury’s verdict was influenced by an improper communication." The Court went on to hold that the Government had established just that, because Ms. Wilson had only sent information out, not brought it in:

First, the extent of the communication, the most important factor, was minimal; several phone calls to different media outlets, none lasting longer than six minutes. The district court found there was "no showing" that the media outlets even provided any information to Wilson. [Citations omitted here and throughout this excerpt]. To the extent Wilson received any information, it was a statement from the WSPA news producer Shannon Mays that she had covered the case in Indiana when Basham and Fulks escaped; such information was obviously cumulative of what the jury had already heard. In addition, the district court found "no evidence" that Wilson "informed the other members of the jury about the phone calls."

We admit the timing of the communication, right before jury instructions, is troubling. Courts rarely find external communication prejudicial, however, where, like here, the communications are "devoid of substantive content." Given the district court’s express finding that Wilson received no substantive information during these phone calls, we cannot say that the district court abused its discretion in denying Basham’s motion for a new trial.

The opinion does not discuss whether Ms. Wilson's campaign for press attention might itself cast doubt on her impartiality, whether or not she learned anything as she pursued it. Instead, like most juror impartiality opinions, this one turns on two things: explicitly, the quality of the trial court's inquiry ("a textbook model," said the court) — and implicitly, the horror of the underlying facts.