United States v. McKinney

• Decision Date: 01 July 1970
• Docket Number: No. 27634.,27634.
• Citation: 429 F.2d 1019
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jessie Kenneth McKINNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.2d 1019 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Jessie Kenneth McKINNEY, Defendant-Appellant.

No. 27634.

United States Court of Appeals, Fifth Circuit.

July 1, 1970.

Cread L. Ray, Jr. (court-appointed), Ben Z. Grant, Marshall, Tex., for defendant-appellant.

Richard Brooks Hardee, U. S. Atty., Tyler, Tex., Carl R. Roth, Asst. U. S. Atty., Beaumont, Tex., Kirby W. Patterson, Atty., Criminal Section, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge.

In this criminal case the appellant entreats us to invade the cloister of the jury room to determine whether the verdict of guilty in the court below may have been influenced by prejudicial newspaper publicity. With equal fervor the government implores us not to enter the cloister, invoking the aged and hallowed principle of the sanctity of jury deliberations. Eschewing blind obedience to this salutary principle, we reject the government's imploration. Firm in our belief that this is one of those rare occasions which demand a ventilation of the jury's precincts in the interest of justice, we remand for a determination of the facts regarding the jury's deliberations and for the application of such therapy as the facts may require.

I.

On February 3, 1966, Jessie Kenneth McKinney was indicted for entering a bank with intent to commit larceny in violation of 18 U.S.C.A. § 2113(a). While awaiting trial on this charge McKinney escaped from the Harrison County Jail in Marshall, Texas, on May 27, 1966. His escape apparently received extensive coverage in newspapers in the area. After being apprehended and returned to the custody of law enforcement officials, McKinney was brought to trial in the United States District Court for the Eastern District of Texas — the court sitting in Marshall, Texas — on July 5, 1966. On that date McKinney entered a plea of not guilty, the jury was selected, the case was tried, the jury found McKinney guilty, and the court sentenced him to a term of twenty years.

After conviction and sentencing, McKinney's court-appointed counsel apparently had a discussion with a juror who told him that members of the jury had recalled newspaper stories concerning McKinney's May 27 jailbreak and had discussed among themselves his escape and subsequent apprehension. Consequently, in his motion for new trial, filed on July 8, 1966, McKinney's counsel included the following point:

"The defendant was substantially prejudiced and deprived of a fair trial by reason of the following circumstances:

"The members of the jury discussed in the jury room evidence not offered or admitted into evidence as to the guilt or innocence of the defendant, in that the jurors recognized the defendant as being one and the same person who escaped from the Harrison County jail and that such jail break was highly publicized in all of the news media in the Eastern District of Texas, said territory being within the jurisdiction of this Court from which said jurors were drawn, and the fact that the jurors discussed among themselves that the defendant had escaped from the Harrison County jail several weeks prior to trial, and discussed his apprehension and return to the Harrison County jail, no doubt influenced their decision as to the guilt or innocence of the defendant, and that such discussion of these facts outside of the record did irreparable harm to the defendant, which harm can only be cured by the granting of this motion for new trial. That such discussion of the above facts and the misconduct of the jurors has been confirmed to the defendant\'s court-appointed attorney by the juror, Thornton F. Everett, who resides at 102 Acorn Drive, Marshall, Texas."

There is no indication in the record that McKinney's counsel offered any affidavit or other evidence in support of this contention. He apparently did not request a hearing, and the court did not hold a hearing. The motion for new trial was overruled on July 21, 1966. The court's order overruling the motion did not specifically mention the issue of jury misconduct; it merely recited that the motion was "in all things overruled."

McKinney now appeals to this court,¹ urging a reversal on the ground that "the jurors could not have reached an unbiased decision as to the guilt or innocence of the appellant in this case since they discussed his jail breaking record which was not in evidence before them." The government urges us to affirm the conviction on the ground that the trial court correctly disposed of McKinney's allegation of jury misconduct. We do not adopt either party's position. Instead, for the reasons hereinafter given, we remand to the district court for the holding of an evidentiary hearing concerning the alleged jury misconduct.

II.

The problem of prejudicial newspaper publicity can arise in many different ways, and these situations are not easily susceptible of categorization. It is not surprising, therefore, that in the present case we find it somewhat difficult to draw exact parallels with the factual situations presented by other cases. We are guided, however, by general principles which are deeply ingrained in our jurisprudence. We begin with the very concept of the jury as the determiner of guilty or innocence in criminal trials. At the heart of this concept is the notion that the jury, drawn from the populace to determine whether one accused of crime will be punished or will go free, should make its decision solely on the basis of the evidence offered in open court with all the judicial safeguards there afforded. As Mr. Justice Holmes wrote for the Supreme Court more than sixty years ago, "the theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 1907, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881.²

All must recognize, of course, that a complete sanitizing of the jury room is impossible. We cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system, and we cannot and should not excommunicate them from jury deliberations. Nevertheless, while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not "testify" in the confines of the jury room concerning specific facts about the specific defendant then on trial. Our adversary system presupposes courtroom testimony only and must reject the transfusion of testimony adduced beyond the judicial aegis. To the greatest extent possible, all factual testimony must pass through the judicial sieve, where the fundamental guarantees of procedural law protect the rights of those accused of crime.

In keeping with these fundamental precepts, courts have been diligent in attempting to shield juries as much as is humanly possible from newspaper publicity prejudicial to the defendant, for it has been repeatedly recognized that newspaper publicity can so prejudice a jury's deliberations that a fair trial is unattainable. Such a situation can result from a total atmosphere of prejudice created by a constant barrage of press coverage, see Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Irvin v. Dowd, 1961, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751,³ or from specific newspaper articles which come to the attention of members of the jury, see Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Mattox v. United States, 1892, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; United States v. Reid, 1851, 53 U.S. (12 How.) 361, 13 L.Ed. 1023; United States v. Kum Seng Seo, 3 Cir. 1962, 300 F.2d 623; Briggs v. United States, 6 Cir. 1955, 221 F.2d 636.⁴

The Supreme Court decision most relevant to the present case is Marshall v. United States, supra. In Marshall the defendant was convicted in a federal court of unlawfully dispensing tablets of a certain drug without a prescription from a licensed physician. His conviction was upheld by the Tenth Circuit,⁵ but the Supreme Court reversed. Exercising its supervisory power over the federal courts, the Court granted a new trial because of prejudicial newspaper publicity. In a per curiam opinion the Court delineated the factual background of the issue of prejudicial publicity as follows:

"Petitioner defendant never took the stand; nor did he offer any evidence. A government agent testified that he was introduced to petitioner as a salesman who had difficulty staying awake on long automobile trips and that on two occasions he obtained these tablets from petitioner. Petitioner asked the trial judge to rule there was entrapment as a matter of law. The judge refused so to hold and submitted the issue of entrapment with appropriate instructions to the jury. Cf. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed. 859. The Government asked to be allowed to prove that petitioner had previously practiced medicine without a license, as tending to refute the defense of entrapment. The trial judge refused this offer saying, `It would be just like offering evidence that he picked pockets or was a petty thief or something of that sort which would have no bearing on the issue and would tend to raise a collateral issue and I think would be prejudicial to the defendant.\'

"Yet during the trial two newspapers containing such information got before a substantial number of jurors.

* * * * * *

"The trial judge on learning that these news accounts had reached the jurors summoned them into his chamber one by one and inquired if they had seen the articles. Three had read the first of the two newspaper articles and one

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