Murder conviction reversed on appeal

A simple conversation between a juror and the judge’s secretary about whether the juror could continue deliberating after his grandmother’s death has cost prosecutors a guilty verdict in a murder case.

The Court of Special Appeals held Monday that the interaction should have been disclosed to the lawyers immediately. It sent Thomas B. Harris’ case back to Baltimore County Circuit Court for a new trial.

“We do not know whether the juror whose grandmother died or other jurors failed to deliberate properly or rushed to reach a verdict,” Judge Robert A. Zarnoch wrote for the court. “However, we cannot conclude beyond a reasonable doubt that [Harris] was not prejudiced by the court’s failure to promptly disclose the ex parte communication.”

The chief of the criminal appeals division at the Office of the Attorney General said the state may ask the Court of Appeals to review the case.

“There does not appear to be any controlling authority, and we are reviewing the opinion to determine whether to file a petition for certiorari,” Brian Kleinbord said.

Brian Edmunds of Arnold & Porter LLP, who argued the case pro bono for Harris, would say only that he is pleased with the result and believes the appellate court made the right call on the juror issue.

The Court of Special Appeals rejected Harris’ argument that the evidence was insufficient to support his conviction.

A message from home

After the jury had been sworn in, a juror told Judge Michael J. Finifter that his grandmother was ailing and not expected to live. He arranged with the judge to get messages through chambers from his family and said he was fine with going to see her after court ended for the day.

Two days later, after the jury had begun deliberating, the juror sent a note to the judge indicating that his grandmother had died and asking that he be excused.

“If you can exchange me for an alternate jury member without disrupting anything, that will be great,” the juror wrote. “If it is a big deal, please discuss with me.”

Finifter read the note aloud to the lawyers and said his secretary had taken the message when the juror’s father called, and she had asked the juror whether he could continue to serve. The juror indicated that he could, Finifter said.

Harris’ lawyer asked for a mistrial.

Finifter’s secretary then testified about her exchange with the juror, which occurred after he spoke to his father on the telephone.

“He told his father that he would soon be finished, he thought, and I asked him,” she testified. “When he was finished, I said, ‘Are you all right to continue?’ He said, yes, he was.”

Finifter declined to grant a mistrial and told the juror he could not excuse him.

Later that day, the jury reached its verdict, convicting Harris of the second-degree depraved heart murder of Karim Cross but acquitting him of second-degree specific intent murder. Cross was killed outside a Randallstown bar.

‘No margin for error’

While there was no indication that the judge or his secretary encouraged the juror to continue deliberating, the appeals court held that the communication presented a problem.

“Although the juror responded ‘yes’ that he was ‘okay to continue,’ it was not merely a confirmation of the status quo,” Zarnoch wrote. “The circumstances had changed from the beginning of the trial. The juror’s grandmother had died. Indeed, not long after answering that he could continue, the juror requested to be excused. Counsel should have been provided the opportunity to help the court determine whether the juror’s frame of mind had changed.”

Zarnoch noted that the secretary’s conversation with the juror happened before the alternates were discharged. Defense counsel said that, had she known about the communication, she would have requested that the juror be replaced.
Baltimore County Assistant State’s Attorney S. Ann Brobst, head of the circuit court division, said her office is disappointed but recognizes that the courts take ex parte communication very seriously.

“The appellate courts have been very strict and very clear … that this rule is to be adhered to very precisely and that there’s no margin for error,” Brobst said.

That applies even though it’s “natural for humans to respond to one another and not say ‘Wait, wait, we have to get all the parties here,’” she said.

Prosecutors intend to try Harris again next year.