Thursday, July 17, 2014

Court committed Bruton error, but error was harmless

U.S. v. Shaw, 2014 WL 3377652 (7/11/14) (Kan.) (Published) - The 10th finds it violated the Confrontation Clause to admit an alleged accomplice's confession to police, although Mr. Shaw's name was replaced with a neutral pronoun. The district court thought the admission was okay under Bruton. But it was only okay under Bruton to stick in neutral pronouns in a joint trial where the statements were admissible against the confessor and an instruction is given to disregard the evidence with respect to the confessor's co-defendant. But here Mr. Shaw was on trial by himself and the evidence was used against him. But the error was harmless beyond a reasonable doubt because the offending statement only related to a bank robbery concerning which Mr. Shaw obtained an acquittal and the evidence regarding the other robberies was very strong.

The 10th also finds inadmissible brief testimony about an uncharged bank robbery. A witness testified Mr. Shaw asked him to pick up a man and later that day he learned there was a bank robbery in the same town. The evidence had too little relevance to be admissible. But the admission was harmless. The improper evidence so tenuously tied Mr. Shaw to a robbery that it couldn't have influenced the verdicts that were supported by strong evidence.

The 10th holds that a trial court does not abuse its discretion when it refuses to dismiss a juror who has in some way indicated she may not be impartial if she subsequently affirms her impartiality. Thus the 10th precludes virtually any juror bias challenge on appeal. In this case, Mr. Shaw mouthed the words "call me" and gestured to a juror as if he were holding a telephone to his ear. This upset the juror. Let's call her juror 121. [Mr. Shaw explained he was actually trying to gesture to a different juror. He obviously needs to refine his flirting technique]. 121 told the bailiff about Mr. Shaw's behavior in front of the other jurors. The court questioned all the jurors about this. One juror, 76, said the incident made her sick and she would have to make an effort to get the implanted event out of her mind. Eventually 76 said she thought could put the matter aside. The court excused 121, but refused to excuse 76. The 10th found this to be okay. The 10th also noted its concern about removing jurors as a result of a defendant's misconduct.