Krause v. Rhodes

• Citation: 570 F.2d 563
• Decision Date: 20 March 1978
• Docket Number: No. 76-1095,76-1095
• Parties: Arthur KRAUSE et al., Plaintiffs-Appellants, v. James A. RHODES et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 563

570 F.2d 563

Arthur KRAUSE et al., Plaintiffs-Appellants, v. James A. RHODES et al., Defendants-Appellees.

No. 76-1095.

United States Court of Appeals Sixth Circuit.

Argued June 21, 1977.

Decided Sept. 12, 1977.

Rehearing and Rehearing En Banc Denied Oct. 20, 1977.

Certiorari Denied March 20, 1978.

See 98 S.Ct. 1488.

Clyde Ellis, Louis A. Jacobs, Michael E. Geltner, American Civil Liberties Foundation of Ohio, Inc., Columbus, Ohio, Sanford Jay Rosen, Rosen, Remcho & Henderson, San Francisco, Cal., Nelson G. Karl, American Civil Liberties Union Foundation of Ohio, Inc., Cleveland, Ohio, David E. Engdahl, Denver, Colo., Amitai Schwartz, Northern Cal. Police Practices Project, San Francisco, Cal., Robert P. App, American Civil Liberties Union of Ohio Foundation, Inc., Columbus, Ohio, Nicholas B. Waranoff, Jacobs, Sills & Coblentz, San Francisco, Cal., for plaintiffs-appellants.

William J. Brown, Atty. Gen. of Ohio, Richard A. Waltz, Columbus, Ohio, Burt J. Fulton, Gallagher, Sharp, Fulton, Norman & Mollison, Cleveland, Ohio, Charles E. Brown, Wm. W. Johnston, Crabbe, Brown, Jones, Potts & Schmidt, R. Brooke Alloway, N. Victor Goodman, Topper, Alloway, N. Victor Goodman, Goodman, DeLeone & Duffey, Columbus, Ohio, Robert W. Blakemore, Blakemore, Rosen & Norris, Timothy A. Shimko, Blakemore, Rosen & Norris, Robert W. Blakemore, Akron, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

In these consolidated cases damages were sought by nine persons injured and the personal representatives of four persons who were killed at Kent State University on May 4, 1970. The defendants were the Governor of Ohio, the president of the university and various officers and enlisted members of the Ohio National Guard. After a trial which lasted approximately 15 weeks the jury returned a verdict for all defendants and the plaintiffs have appealed.

This is the second appeal in the present case. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the Supreme Court reversed this court's affirmance of a judgment dismissing the complaints on grounds that the defendants were entitled to immunity by reason of their official positions and that the Eleventh Amendment barred an action against the State of Ohio. The Supreme Court held that the complaints stated claims upon which relief may be granted and that the actions are not barred by the Eleventh Amendment. In its opinion the Supreme Court discussed the doctrine of executive immunity and its application in actions based on 42 U.S.C. § 1983 where it is claimed that state officials have misused power which they possess by reason of positions which clothe them with the authority of state law. In remanding the cases the Supreme Court defined the issues and the actions required of the trial court as follows:

The documents properly before the District Court at this early pleading stage specifically placed in issue whether the Governor and his subordinate officers were acting within the scope of their duties under the Constitution and laws of Ohio; whether they acted within the These cases have been exhaustively briefed and they were fully argued. Though many specific errors are claimed by the plaintiffs, they may fairly be grouped into five categories: (1) lack of substantial evidence to support the verdict, (2) violation of First Amendment rights as a matter of law, (3) numerous errors in evidentiary and procedural rulings of the district court, (4) failure to deal properly with extraneous influences on the jury and (5) errors in the court's charge to the jury. We conclude that the plaintiffs are entitled to a new trial because the verdict was returned by a jury, at least one of whose members had been threatened and assaulted during the trial by a person interested in its outcome. The other contentions of the appellants will be dealt with only as necessary to avoid error at another trial.

range of discretion permitted the holders of such office under Ohio law and whether they acted in good faith both in proclaiming an emergency and as to the actions taken to cope with the emergency so declared. Similarly, the complaints place directly in issue whether the lesser officers and enlisted personnel of the Guard acted in good-faith obedience to the orders of their superiors. Further proceedings, either by way of summary judgment or by trial on the merits, are required. The complaining parties are entitled to be heard more fully than is possible on a motion to dismiss a complaint. 416 U.S. at 250, 94 S.Ct. at 1693.

THE JURY ISSUE

The jury was not sequestered. Near the end of the trial it was reported to the district judge that one juror had been threatened three times and assaulted on one occasion. The threats were against both the juror and his family, and were related to the verdict in this case. The excerpts from the transcript which are appended hereto describe the problem and the steps taken by the district court.

Several facts require further comment. The district judge never interrogated the threatened juror to learn what effect the incidents had had on him and whether he had discussed the threats with other jurors. When counsel for the plaintiffs requested that such an interrogation take place the court indicated that he would "take care of it" apparently referring to his tentative decision at that time to excuse the threatened juror. Later the court stated that there was no need even to inquire of the juror since he was going to be excused anyway. In fact, however, the juror was never excused. Instead the entire jury was informed that an attempt had been made to influence its decision in the case, and the jury was eventually sequestered. In addressing the jury the judge referred to the extreme seriousness of the threats and the fact that he had "blood on his hands" because of failure to take a threat seriously at some earlier time. The court did not question the other jurors to determine whether any of them had been approached or whether the threatened juror had discussed the details of his experience with them.

During the proceedings in chambers from which we have quoted extensively in the appendix the district judge indicated several times that he had decided to excuse the threatened juror. After the court had delivered its charge to the jury counsel for plaintiffs asked if the court had elected not to excuse the threatened juror. The following dialogue occurred:

THE COURT: (4029) I am electing not to excuse that juror.

MR. KELNER: I assume none of the parties know who that juror is?

THE COURT: Not from me, I have refused very adamantly to give anybody the slightest hint.

MR. KELNER: In relation to our responsibility to our clients, I think opposing counsel as well, are there any different facts available to the Court relating to the ability of this juror to fulfill his duties as a juror in deciding the case untrammeled by any further threats or any other details that we have not been provided with?

THE COURT: No. The situation is no different than it was at the time the I have a great belief in jurors and their ability to overcome (4030) any prejudicial things and to outweigh them when they know they have to do it.

matter was argued out. I simply took the position, after I reviewed the matter, there were many ways this man could react. He reacted in the proper manner, that is, called for help from the authorities that he could think at the moment for immediate help. If a fellow does that, that's an indication he is conscientiously trying to do the thing the right way.

I feel, even though he was approached and threatened something was going to happen, being assured that protection was forthcoming, he no longer has to consider that, and I am quite sure that he will be able to put these extraneous things out of his mind and decide the case on the basis of the law and the evidence.

I think it will be rather hard, in many ways, I think Mr. Fulton pointed this out, here is a guy who tried to do the right thing, after going through all the hell of this case, that automatically poisoned his mind and it wasn't his fault. I don't think it automatically poisoned anybody, so I am going to let him go.

(Page numbers refer to Joint Appendix.)

The Supreme Court laid down the following rule in Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892):

Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officers in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.

Mattox was a capital case. However, this rule has been applied in both criminal and civil cases through the years. It does nothing more than establish the most fundamental requirement for successful employment of the jury system that every litigant may have confidence that his case will be decided solely on the law and the evidence heard in the courtroom. Since trial by jury is guaranteed in both criminal and civil cases by the Sixth and Seventh Amendments to the Constitution, any unauthorized intrusion into the work of a jury is a threat to our entire system of justice.

In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Court criticized the use of an FBI agent to interrogate a juror who had been approached by a third party during a criminal trial, stating:

The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate. Id. at 229-30, 74 S.Ct. at 451.

After remanding the Remmer case for a hearing on whether the incident was harmful to the defendant, the Supreme Court ultimately ordered a new trial upon concluding that the...