What happened when a jury didn’t do as it was told
After a lunchtime recess on March 28, jurors in a child molestation trial returned to their chairs inside the wood-paneled Courtroom B on the third floor of the Bibb County Courthouse.
Their seats faced the witness stand and, beside it on the bench, presiding Judge Howard Z. Simms, who was not happy.
For a day and a half, the jury had watched the case against Onterio KeShawn Smith play out.
They had seen Smith, 24, take the stand in his own defense and deny performing sex acts with a then-6-year-old boy two summers ago.
They had also, the day before, heard that child testify. Among the alleged violations the boy spoke of, some involved Smith touching, as the boy put it, “my middle part and my butt.”
As judges routinely do when there are breaks or recesses in trials, Simms on numerous occasions warned jurors not to discuss the case with each other — or anyone — until, of course, it was time to deliberate.
A full account of the courtroom dialogue and witness testimony is chronicled in a 148-page transcript, a document upon which this article is largely based. The judge’s repeated reminders to the jury are noted therein.
At lunchtime on the opening day of testimony, Simms had told jurors, “Remember, don’t talk about this case, OK?”
Then at the end of that first day, before sending the jury home, Simms repeated himself: “Don’t talk about the case.”
Before the lunch break on the second day of trial, as lawyers on both sides were preparing their closing arguments, Simms told the jurors, “We’ll see y’all back at 1 o’clock, and don’t talk about the case — not yet.”
But 1 p.m. would come and go. It would be nearly 2 o’clock before jurors, waiting in the jury-deliberation room, were summoned back to the courtroom.
“All right, folks,” a perturbed Simms told the jury, “we have an issue that I need to address.”
The judge did not divulge how it had come to his attention, but a bailiff had informed him that during a recess earlier that day she had overheard a few jurors doing what they had been warned not to. They were discussing the case.
A couple of courtroom observers would later say privately that it was almost as if those jurors were treating the trial like a game show.
The conversation the bailiff overheard appeared to be about one witness’s testimony and questions that one or two of the jurors still might have. The conversation did not appear to have delved into whether the man on trial was guilty or not. Even so, such discussions, however insignificant they may seem, are no-nos at that stage of a trial.
Meanwhile, the prospect of a mistrial hung in the balance. If one was declared, that would mean the little boy would, in all likelihood, have to take the stand and face his alleged molester once more. It would also mean that Smith, the man accused, who had been in jail on aggravated child molestation charges since September 2017, would spend more time in jail awaiting his legal fate.
Moments before the judge had alerted jurors of their potential misconduct, Smith’s defense attorney Andrew Feagan had, upon hearing what the bailiff had told the judge, asked the judge for a mistrial.
“I feel like it would be malpractice not to,” Feagan had said.
But first Simms wanted to hear from the jurors themselves. After they returned to their seats, the judge asked them, “Does anybody remember hearing any conversation about the case in the jury room?”
“Yeah,” one of the jurors, a man, answered, “people did kind of talk about it, yes.”
Other jurors were sent back to the deliberation room. The juror who spoke up was asked to explain what he had heard.
“The conversations,” he said, “were from, you know, these people saying … ‘They’ve got to prove this to me, got to prove that to me.’”
The next juror called in, a woman, said three or four of the other jurors had wished aloud that they could ask questions “about the evidence that we heard, because a lot of questions they had hasn’t been answered.”
Simms asked her, “Were people expressing their opinions about the evidence?”
“Not really,” the woman said. “A little bit, but …”
“A little bit,” the judge asked, “what does a little bit mean?”
“I think,” the woman replied, “they were just saying, like, you know, we wish they could ask more questions.”
The next juror called in, a woman, said no one spoke of reaching any decision, just that there was “a little bit” of discussion about testimony in the case.
The judge sent the woman back to the jury room and said, “I don’t know that I really need to hear from anybody else. My inclination is to grant Mr. Feagan’s motion (for a mistrial), because this jury has done precisely what I’ve told them not to do.”
Simms summoned the jury one last time. Then he launched into a lecture not unlike those usually reserved for the convicted.
“Ladies and gentlemen,” he began, “there’s a reason that I tell you, one of the first things that I tell you ... don’t talk about this case until the evidence is concluded and it’s time for you to deliberate. This is the perfect example of why I tell you that, because what I have to do now is declare a mistrial based on juror misconduct and start all over with a different jury.”
Simms wasn’t done.
“It’s not a suggestion when I tell you not to talk about the case,” he said. “It’s not a hint. It’s not something that would be nice if you didn’t do it. It’s vitally important that you not do it. … You have been talking about the case. You’ve talked about the evidence, and to some extent you’ve come up with a standard of proof before ever hearing from the court what the standard of proof even is under the law.”
Before jurors were shown the door to leave, Simms thanked them nonetheless. He said that if they ever serve on another jury, he would “appreciate it very much” if they listened to the judge’s instructions.