The Idaho Supreme Court explained the background of the case as follows:
David Leon Johnson, the appellant, was charged with three counts of lewd and lascivious conduct with a minor under sixteen pursuant to I.C. § 18–1508. He was charged for offenses he allegedly committed against his daughter, A.J., who was between six and seven years old at the time of the charged conduct. Mr. Johnson had a home in Paul, Idaho, with his wife and five children at the time. The first two counts allegedly occurred over the first weekend of spring break, 2004. Michelle Johnson, Mr. Johnson's wife at the time, purportedly took the couple's children to Utah to visit her parents but left A.J. behind with Mr. Johnson. A.J. testified that while she was home alone with Mr. Johnson, he molested her on two occasions. First, he allegedly touched and penetrated A.J.'s genitalia with his hands, made A.J. touch his penis manually until he ejaculated, and then forced her to lick chocolate off of his penis. Second, Mr. Johnson allegedly attempted to penetrate A.J. in the shower by lifting her up and onto his penis. The third count alleged that Mr. Johnson molested his daughter over the Memorial Day weekend of 2005.
State's Lodging B-4, pp. 1-2 (first direct appeal).
In a 2006 jury trial, Petitioner was convicted of the first two counts of lewd conduct and acquitted of the third count. State's Lodgings A-1, pp. 1-4; A-2, pp. 320-321. On direct appeal, the Idaho Supreme Court agreed with Petitioner that the trial court committed harmful error in admitting the testimony of Petitioner's sister that he had sexually molested her when he was a teenager. State's Lodging B-4. The court vacated the conviction and remanded the case for a new trial.
Upon remand, the trial court put into motion the procedures for a new trial:
The parties and the court met for a final pre-trial conference on June 6, 2011. During the conference Johnson's counsel requested that a jury questionnaire be used to aid in selection of the jury, and counsel submitted a proposed questionnaire to the court on June 7, 2011. On June 16, the district court entered a Minute Order Regarding Preliminary Jury Selection Proceedings (Minute Order) which informed counsel that the court would conduct "preliminary jury selection proceedings" and would "give verbal preliminary instructions and information about the charges in th[e] case." The court attached a written copy of the court's intended comments as Exhibit A to the Minute Order. The certificate of service on the Order indicates that it was served on counsel by facsimile on June 16. The Minute Order also allowed the parties to object to the court's intended comments by June 21; however, Johnson's counsel failed to object.
[On June 22, 2006, the] court summoned jurors to complete the questionnaires, gave them preliminary instructions, and read them the information contained on Exhibit A, which included the following language: "There was a prior trial in this case in 2006. Following an appeal, the Idaho Supreme Court reversed and remanded the case to this court for a new trial." Defense counsel was not present during these hearings and therefore lodged no contemporaneous objection to the court's reading of the instruction.
State's Lodging F-5, p. 3.
On June 27, 2006, one week into voir dire, Defendant's counsel, Mr. Roark, filed a motion in limine to preclude the attorneys or witnesses from "[m]aking any reference to a prior trial in this case" and requesting that, to the extent that witnesses need to refer to the prior trial, that it be referred to as a "previous hearing in this case." In camera, the Court, Mr. Roark, and the prosecutor, Mr. Stevenson, discussed the following:
THE COURT: Back on record in chambers at 9:20 A.M. All counsel present.
Mr. Roark, we took a quick look at your motion in limine, the essence of which is to seek that there be no mention made of the prior trial in this case. We crossed that bridge last week with both these -- with the supplemental questionnaires. I told the panels when they were in that there had been a prior trial; that on appeal, the Supreme Court had reversed and remanded the case to this Court for trial and that I was assigned to handle this case. So without meaning to and not knowing that was your position, I went ahead and, I think -- did we make that disclosure in the proposed questionnaire?
MR. STEVENSON: The proposed jury instructions.
LAW CLERK: It was in the statement that you read, but it wasn't part of the actual questionnaire.
THE COURT: Right, but we sent that questionnaire out to counsel --
LAW CLERK: Yes.
THE COURT: -- for review? And I can just, at this point, without -- it's appropriate, I think, to talk about this now, because one of the questions I usually ask during the voir dire process is whether anybody's ever been or was on the jury that tried this case previously or was a witness or knew anybody that was a witness or had developed any information from that case, so that was definitely a direction I was going to go, but that bridge has been crossed in that sense, that there has been disclosure made to these folks that there was a trial and a reversal and a remand for a new trial.
MR. ROARK: Well, I'm very concerned about that, because the jury has, in effect, been told that my client has previously been convicted.
THE COURT: They were told there was a prior trial and a remand. The word "convicted" was never used.
MR. ROARK: The word "convicted" may not have been used, but I don't know any reasonable inference that the jury could otherwise draw.
THE COURT: How would you propose that we ever inquire as to previous experience without ever disclosing that there was a prior trial?
MR. ROARK: Well, I think it can be referred to as a prior hearing in terms of what the witnesses have to do, and that does not make it exceptional in terms of how we get around preliminary hearings and grand juries. The jurors are made aware that there was a preliminary hearing or there was a grand jury proceeding and that there is prior testimony. This is a different proposition. I mean, I was concerned, certainly, with finessing that point, and I think that can easily be done by calling it a prior hearing. It may be that either side will want to impeach a witness with an inconsistent prior statement. That would require them to bring out the transcript. But, again, if that's referred to as a prior hearing, I don't find that decidedly more prejudicial than if they were bringing out a preliminary hearing transcript or a grand jury transcript.
Here, however, the jury being told that this matter was once tried and then went to the Supreme Court where it was reversed, again, I think the only reasonable inference that any but brain-dead jurors could take from that would be that he's been convicted, and then that conjures up these paradigms of technicalities and so forth. As far as your question about how do find out whether or not these people may have served on a prior jury, I think that that's something that's relatively easy to do, because we ask: "Have you served on a prior jury?" And I think it would be very easy to say, "Have any of you had anything to do with this case prior to today?" Again, that does not require of them a commitment to the proposition that he has been previously convicted. I don't see how we unring that bell.
THE COURT: Well, I think that we unring it because I sent the script out before we ever came to this and asked for counsel to object, and I didn't get any objections, and so based upon that, I felt free to proceed with that script.
MR. ROARK: Well, perhaps it was because I've been in trial. I did not see the script. I can't say that it was not sent. I did not see the script. I certainly would have objected had I been here. And I know that wasn't the Court's fault. I was in jury trial. I couldn't avoid that. I would have objected. I'm very concerned about that, Your Honor.
THE COURT: Well, then, the opening comments to this panel that I make always include the statement that he's been charged; that he has pled not guilty; that the fact of a filing is not evidence; that they shouldn't draw a conclusion of guilt from the fact that a filing -- the point being this is a brand-new day, and I think that that's the way we have to proceed with it at this point is that this is a brand-new trial. This is day one. My concern is a further comment on it, then, if, in fact, there is prejudice -- and I'm not presuming that there is, although I understand the defense's concerns, any further comment on it as a topic would only, I think, serve to highlight it, and rather than that, by focusing on the fact that this is a brand-new trial and
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