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Md. high court validates alternate juror at deliberations

An alternate juror’s silent attendance during jury deliberations does not generally violate a defendant’s constitutional right to a fair trial, Maryland’s top court ruled Wednesday in upholding an attempted-first-degree-murder conviction and life sentence.

In its 6-1 decision, the Court of Appeals said the presence of a spare juror – particularly with defense counsel’s consent – does not necessarily interfere with the sanctity of deliberations solely among those sworn to decide a defendant’s fate.

“Although jury secrecy is important to ensuring that a criminal defendant has a fair trial, the presence of an alternate juror in deliberations does not clear the high bar of fundamental unfairness – at least not in this case,” Judge Sally D. Adkins wrote for the majority.

“The Supreme Court has found only a handful of circumstances that render a trial fundamentally unfair, including: the complete deprivation of counsel, the failure to give a reasonable-doubt jury instruction, a biased judge, and the race-based exclusion of grand jurors,” Adkins added. “It is unfathomable that the mere presence of an alternate during jury deliberations – with the express consent of defense counsel and strict instructions to the juror to listen only – gives rise to nearly as grave constitutional concerns as the circumstances presented in the four cases above considered by the Supreme Court to be ‘fundamentally unfair.’”

In the case before the high court, Donta Newton’s trial attorney was not obliged to object to the alternate juror’s presence, as it was not shown to have affected the jury’s verdict, Adkins wrote. The lawyer’s silence, therefore, did not constitute ineffective assistance of counsel, as Newton alleged on appeal, the judge added.

Newton’s trial attorney later testified to not having objected to the alternate’s presence during deliberations out of a belief that the defense’s case was strong and that a mistrial – as had occurred during Newton’s first trial – would have prevented an acquittal.

That strategy turned out to be based on a faulty hunch, however, as the Baltimore City Circuit Court jury found Newton guilty in 2006 of attempted first-degree murder, using a handgun in a violent crime and possessing a gun after being convicted of a disqualifying crime. Judge David Ross – who had suggested allowing the alternate to attend jury deliberations – sentenced Newton to life plus 10 years without parole for shooting Jerrell Patillo in west Baltimore in September 2004.

In a post-conviction proceeding, Baltimore City Circuit Judge Lynn Stewart Mays ordered a new trial, finding in 2015 that the defense counsel was ineffective in not objecting to the alternate juror being permitted to attend deliberations.

But the intermediate Court of Special Appeals reversed last year, finding that defense counsel’s strategy was reasonable. The high court, in affirming, said that even if his attorney’s performance was deficient, Newton was not prejudiced by it because he failed to show he would have prevailed on appeal but for the lawyer’s failure to raise the alternate juror issue.

Prohibited by rule

In dissent, Judge Joseph M. Getty said prejudice to the defendant is presumed when an alternate juror attends deliberations because such presence is prohibited under Maryland’s procedural rules and under the Court of Appeals’ 2004 decision in Stokes v. State.

“Under clearly established Maryland law at the time of Mr. Newton’s trial, there was no possible scenario under which allowing the alternate to be present during jury deliberations could have benefitted Mr. Newton, because substituting the alternate after deliberations had commenced was, and still is, prohibited,” Getty wrote. “In my view, because trial counsel’s deficient performance deprived Mr. Newton of a near-certain reversal on direct appeal, such deficient performance rendered Mr. Newton’s proceeding fundamentally unfair. Therefore, I would hold that Mr. Newton has established the prejudice prong of his ineffective assistance of counsel claim.”

Lisa J. Sansone, Newton’s appellate attorney, declined to comment on the decision Wednesday, saying she had not had an opportunity to review it. Sansone is a Baltimore solo practitioner.

The Court of Appeals rendered its decision in Donta Newton v. State of Maryland, No. 86, September Term 2016.

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