Jurors' discussion of personal expertise not prejudicial, court holds.

In a case it called "peculiar ... to the point of being seriously bizarre," the Ninth Circuit Court of Appeals has ruled that jurors can discuss their own experiences and expertise during deliberation, even if doing so brings up matters that were not part of the trial testimony. Finding that defendants are entitled "to an 'impartial' jury, not to an ignorant one," the court denied habeas corpus relief to a petitioner who said a jury-room diagnosis of his mental condition violated his Sixth Amendment rights. (Grotemeyer v. Hickman, 393 F.3d 871 (9th Cir. 2004).)

The story begins in 1996 and involves several residents of a San Francisco apartment building identified in court documents as "the piano player," "the music hater," and "the door nailer."

The piano player, a 25-year-old woman, had just moved into the building when she met the music hater, so called because he complained about her piano playing, and the door nailer, who at the time was nailing his broken apartment door shut. The piano player claimed that later that night, the door nailer (Gregory Grotemeyer, the petitioner in this case) entered her apartment and sexually assaulted her.

Her screams awoke the music hater, who climbed the fire escape to her Window and asked her to be quiet. She then called the police, who found her crying and frantically piling boxes against her door. Officers later arrested Grotemeyer as he entered the building accompanied by two transvestite prostitutes.

At trial, Grotemeyer said the alleged victim was a drug addict who had entered his apartment around midnight and invited him to her room, where they smoked crack and engaged in consensual sex. He also testified that he had been in a severe car accident that left him with a shunt in his brain and a speech impediment. The victim denied being a crack user but admitted she had used speed (methamphetamines).

Grotemeyer was convicted of burglary, false imprisonment, and sodomy charges and sentenced to 25 years to life at a state medical facility.

After the trial, one of the jurors approached Grotemeyer's defense attorney to complain about the jury forewoman, a physician. The juror claimed that the forewoman had told the other jurors that Grotemeyer was clearly guilty; that he was "mentally ill or retarded" and his condition caused him to commit the crimes; that the defense should have mounted an insanity defense; and that if the jury convicted Grotemeyer, he would receive the mental health treatment he needed.

"The record suggests that the jury was at an impasse after deliberating for a very long time, and that [the forewoman's comments] broke the impasse," said Donald Horgan, a San Francisco attorney who represented Grotemeyer in his appeal. He added that the forewoman had disclosed her medical background during voir dire but said it would not affect her ability to be impartial.

Grotemeyer moved for a new trial. He submitted a statement from the music hater, who said the piano player had offered him drugs and wine and told him about another incident in which she falsely accused someone of sexual assault. The jury forewoman also submitted a statement saying that she had not improperly used her medical expertise during the jury's deliberations.

The trial court denied the motion for a new trial, and the California Court of Appeal affirmed. After the state supreme court denied his petition for review, Grotemeyer filed for a writ of habeas corpus.

Horgan noted that the U.S. Supreme Court has expressed its concern about unreliable expert opinion, "and in this case, the forewoman's 'expert' opinion was not screened at all by the normal protections that apply to courtroom evidence. And we don't know how reliable that opinion was."

The state appellate court found misconduct in two of the forewoman's statements--that Grotemeyer's mental illness caused him to commit the crime, and that he would receive adequate mental health care in prison--because they were an "injection of external information" into the deliberations. But it also found that there was enough evidence to rebut the presumption of prejudice and said it was unlikely the comments would have swayed any jurors' votes.

The Ninth Circuit panel found nothing improper in the forewoman's remarks: "There was no jury misconduct in the federal constitutional sense, nor was there any showing of denial of an impartial jury," Judge Andrew Kleinfeld wrote.

The court added that all jurors bring their own knowledge and experience to bear in deliberations and that limiting jury participation "to the most unworldly and ignorant individuals" would be the only way to avoid that completely.

"One great advantage of jurors over judges is their diversity of experiences," Kleinfeld wrote. "We judges tend to be ignorant about much that was testified to in this case. It would be hard to find a judge who nails his own apartment doors shut, has any personal experience with crack or transvestite prostitutes, or visits strangers by coming up the fire escape and tapping on their window. Judges are drawn from a particularly well-behaved group of people of limited experience. Fortunately, jurors are more diverse in their experiences than we are."

At press time, Horgan had filed ape tition for rehearing. He said Grotemeyer's conviction was based on two conflicting stories that the jurors should have resolved, and their decision may have been influenced by the fact that Grotemeyer engaged in "behavior that was morally offensive" and alienated them.

"The foreperson relieved the jurors of the real issue, which was their responsibility to resolve the credibility conflict on the basis of the facts," he said. "She relieved them of having to try the facts and simply let them do what they wanted. And it's dangerous when jurors do that."