A divided federal appeals court Wednesday put on hold the murder and drug racketeering convictions of two Baltimore gang members, saying prosecutors must show at a hearing that “no reasonable possibility” exists that the verdict was unfairly influenced by a dismissed juror’s stated concern that jury members were being photographed by the gang members’ associates.
In its published 2-1 decision, the 4th U.S. Circuit Court of Appeals said the judge should have held the special hearing during the trial upon receiving the “credible allegation” of the “unauthorized” and concerning contact between jurors and the associates. The contact reasonably drew into question the integrity of a trial that involved a claim of deadly witness intimidation, the 4th Circuit added.
The appellate court’s decision was a victory – at least for now – for Black Guerrilla Family gang members Gerald Johnson and Kenneth Jones. Counsel for Johnson and Jones have sought a so-called Remmer hearing – and ultimately a mistrial — based on their belief that the jury was tainted against them due to the jurors’ fear of having been photographed or at least watched by gang associates.
The U.S. District Court jury found Johnson guilty of murder and conspiracy to commit murder in aid of racketeering and Jones guilty of conspiracy to distribute controlled substances. Johnson’s murder convictions related to the slaying of Moses Malone in retaliation for his having told police that Johnson had likely ordered a gang member to rob him.
Johnson and Jones were sentenced to life in prison without the possibility of parole.
On appeal, the 4th Circuit agreed with defense counsel that a Remmer hearing was – and remains – necessary in light of the presumption that the jury was influenced by its contact and concern with being photographed by the gang associates.
Chief U.S. District Judge James K. Bredar, who presided over the trial, recognized the possibility of taint when he said “there may be an effort afoot to tamper with or intimidate a juror” because “why else does somebody snap pictures of jurors going in and out of the jury room?” the 4th Circuit said. However, Bredar erroneously chose to take steps short of a hearing to ensure the jury remained impartial, the 4th Circuit added.
“We think it is beyond dispute that a juror’s report of jury members being photographed by the defendants’ associates during trial involving murdered witnesses, and that juror’s act of conveying this information to other jurors were ‘more than innocuous interventions’ and constituted conduct ‘of such a character as to reasonably draw into question’ the ability of the jurors to remain impartial,” Judge Barbara Milano Keenan wrote for the majority. “Given the plainly prejudicial nature of (the juror’s) allegation and the court’s response reflecting its assessment that the report was credible, the criteria for a Remmer hearing was set.”
At the Remmer hearing, prosecutors will have the burden of rebutting the presumption that the jury was tainted by showing there was “no reasonable possibility” that the jurors were “influenced by (the) improper communication,” said Keenan, who was joined by Judge William B. Traxler Jr.
In dissent, Judge Diana Gribbon Motz said the court should have deferred to Bredar’s appropriate steps, including dismissing the juror who expressed concern about being photographed, permitting courtroom staff to question the remaining jurors about the alleged photographing and having U.S. marshals examine one of the gang associate’s phones.
When the jurors expressed no concern and the phone contained no photographs, Bredar properly permitted the trial to proceed, Motz wrote.
Motz also expressed concern that the 4th Circuit’s decision would enable criminal defendants to “demand new trials for what we ordinarily would consider innocuous conduct.”
“By watering down what constitutes a credible threat and substituting its judgment for that of the district court, the majority’s holding unfortunately provides defendants a valuable tool to disrupt their trials,” Motz wrote. “I fear we are on a slippery slope where commonplace actions, such as the mere holding of a cellphone, could bring significant delay in criminal trials. In my view, an alleged threat of jury tampering must have stronger indicia of credibility to overcome a district court’s considered contrary view and mandate a Remmer presumption and evidentiary hearing.”
Remmer hearings derive their name from the U.S. Supreme Court’s 1954 Remmer v. United States decision, in which the justices set the procedures a federal district court must follow when there has been a “private communication, contact, or tampering … with a juror during a trial about the matter pending before the jury.”
The 4th Circuit rendered its decision in the consolidated cases United States of America v. Gerald Thomas Johnson and United States of America v. Kenneth Jones, Nos. 18-4312 and 18-4333.