PASADENA, Calif. (CN) - A convicted burglar urged the 9th Circuit to order a new trial based on evidence that one of the jurors in his case was blogging during deliberations.
Donald McNeely was prosecuted in 2006 for stealing credit cards, laptop computers, digital cameras and other items from two hotels in the affluent San Diego neighborhood of La Jolla.
Sentenced to 38 years and eight months in prison, McNeely asked for a new trial after learning that the jury foreman in his trial, Juror No. 8, failed to mention that he was licensed member of the state bar and had blogged about the trial on his personal website.
In the juror's first blog post about the felony theft and burglary trial on March 2, 2006, he wrote: "Nowhere do I recall the jury instructions mandating I can't post comments in my blog about the trial. (Ha. Sorry, will do.)"
The posts are transcribed in a 2010 report and recommendation from U.S. Magistrate Judge Cathy Bencivengo.
Juror No. 8 went on to write in detail about his fellow jurors during deliberations.
The juror's misconduct prompted the California Supreme Court to vacate the judgment. On remand, however, the trial court refused to grant McNeely a new trial and reinstated the judgment.
A San Diego federal judge denied a habeas corpus petition that challenged McNeely's conviction based on the juror's misconduct in 2011.
McNeely fought that denial at a Monday hearing before the 9th Circuit. His attorney, Tara Hoveland, argued that the juror's actions violated her client's constitutional right to a fair and impartial jury.
One of the appellate panelists, Judge Andrew Hurwitz, seemed to disagree.
"Is there anything wrong with somebody describing jury deliberations after the jury is discharged?" Hurwitz said. "Let's assume everything you described happened, even on direct appeal, would that warrant us overturning the jury verdict?"
"Yes," Hoveland said.
"Why?" Hurwitz asked.
"Because it shows that he improperly influenced the deliberations," Hoveland said.
Hoveland noted that the foreman had "basically made up his mind" that McNeely was guilty and was "frustrated" when he discovered other jurors weren't convinced.
In face of the panel's questioning, Hoveland struggled to cite a federal case on which the Court of Appeals could rely.
She then changed tack, noting that the juror had said he was a project manager without disclosing that he was also an attorney.
"He had just been working for this company for two months," Hoveland said. "He was still an attorney. He was still doing legal work for them. He was still doing legal work on his old cases. And he specifically said, 'Look, I didn't say I was an attorney because I wanted to appear more neutral, so I could get on the jury.'"
Judge Ferdinand Francis Fernandez chimed in: "Let's say he didn't say he was an attorney. So what?"
Hoveland said that if, from the outset, the juror had said he was a lawyer, there was a "good chance that he would have been excluded for cause."
Matthew Mulford, with the Office of Attorney General of California, disagreed.
While the juror had obviously acted improperly, the attorney said, there was nothing to show his misconduct changed the outcome of the trial.
The juror did not "lie," and there was not enough to go on to charge him with perjury, Mulford pointed out.
"He was just being lawyerly-like," Judge Richard Paez interjected, to titters from the courtroom.
During rebuttal, Hoveland again urged the court to overturn on constitutional grounds.
"I think the crux of the issue here is that this juror, whether he lied or materially omitted facts in voir dire, did so on purpose to secure a spot on the jury," Hoveland said. "He then positioned himself to be foreman and prejudged the case and pushed for a hasty guilty verdict."
She added that it was "obvious" from the juror's blog posts that he "could not be fair."
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