Nodding to Juror May Upend Death Sentence

     (CN) - Jury tampering may have tainted an Oklahoma murder conviction, the 10th Circuit ruled, taking issue with nods and winks that a juror shared with her husband seated in the courtroom.
     In January 1985, Bigler Jobe "Bud" Stouffer II asked to borrow a pistol from Doug Ivens, his girlfriend's soon-to-be ex-husband, claiming he was concerned about burglars around the house.
     Concerned for his estranged wife and 8-year-old daughter, Ivens gave Stouffer a loaded Colt .357.
     Stouffer turned his back to Ivens, then turned around and shot him twice. Stouffer then shot Ivens' girlfriend, Linda Reaves, twice in the head, and walked back to Ivens to shoot him once more in the face.
     Ivens survived the attack, but Reaves died of her wounds.
     Stouffer was given the death sentence twice after his first conviction was vacated for ineffective assistance of counsel.
     His second conviction could unravel as well after the 10th Circuit ordered the District Court on Thursday to determine whether improper communication between one of the juror's and her husband during the trial influenced the verdict.
     Toward the end of the sentencing phase of Stouffer's second trial, his counsel noticed the husband of juror Stacey Vetter laughing and joking with a man who once lived with Ivens.
     When the defense attorney questioned him, Mr. Vetter said he had met the former roommate only 30 minutes earlier. Immediately after this questioning, Vetter and the former roommate both left the courtroom.
     With the juror's husband unavailable to answer questions, the court allowed Sheriff's Deputy Boles to testify about his observations of Mr. Vetter.
     Boles, whose first name is not provided in the ruling, testified that he had observed repeated nonverbal communication between juror Vetter and her husband, in the form of glances, nods and winks throughout the trial.
     The deputy said his impression was that Stouffer was "screwed" because Mr. Vetter plainly agreed with the prosecutor.
     At one point during the prosecution's final closing argument, juror Vetter looked at her husband with "a questioned look in her face," and Mr. Vetter responded by nodding and rolling his eyes.
     Stouffer's lawyer then asked either for a mistrial or to cross-examine juror Vetter about whether she had discussed the trial with her husband, which jurors are strictly forbidden to do.
     Finding that Bole's testimony only provoked "a lot of speculation," however, the court and declined to investigate the matter further.
     A three-judge panel of the 10th Circuit disagreed.
     "Both the state and the trial court erroneously ignore that the Vetters' repeated nonverbal communications - which occurred inside the courtroom, during proceedings, and apparently concerned the attorneys' closing arguments - were themselves improper," Judge Scott Matheson wrote for the panel.
     "Although some ambiguity may be inherent in non-verbal communications, the timing and context of the Vetters' non-verbal communications and the deputy's specific observations strongly indicate they were discussing matters pending before the jury," he added. "This is improper juror communication, and the state trial court erred in failing to allow a hearing to investigate it."
     The communication may have been harmless, given the weight of aggravating evidence against Stouffer, "but given the trial court's failure to adequately investigate, the federal District Court could not have reasonably concluded whether the improper communication was harmless without first determining the existence and extent of the prejudice," the 42-page opinion states.
     Matheson said the trial court must hold a hearing to determine the extent and substance of juror Vetter's communication with her husband, whether other jurors noticed their in-court communication, and whether it influenced her decision or other jurors' decisions to sentence Stouffer to death.