are likely to be biased against the defendant.
The foregoing cases are analogous to the present situation. The doctrine of presumed or implied bias applies whenever a juror who has participated in a guilty verdict was a past victim of a crime similar to the offense charged or the evidence of criminal conduct presented at trial. It stands to reason that the doctrine of implied bias should also apply where a juror sequestered during deliberations is victimized by criminal conduct similar to the crime charged in the case under deliberation. In fact, the doctrine of implied bias may even be more strongly implicated here than in the voir dire cases. It is reasonable to assume that a juror who has been victimized during deliberations is more likely to harbor actual bias than a juror who has been victimized years earlier.
To return to the hypothetical case, assume the juror was not a past victim of rape. Instead, during the first night of sequestered deliberations in the rape trial, an intruder breaks into the juror's motel room and rapes her. After reporting the rape to police and obtaining medical attention, the juror wishes to continue deliberations with the rest of the jury, who have all been informed of the rape incident. Within one hour after deliberations resume, the rape-victim juror and three other jurors change their votes from "not guilty" to "guilty," and the defendant is convicted of rape. Defense counsel then moves for a mistrial, asserting jury bias caused by the rape incident. Is it conceivable that a trial judge would not immediately grant the requested mistrial? Even if all the jurors, including the rape victim, firmly stated that the incident did not affect their impartiality, and even if the trial judge believed that the jurors were sincere, would any appellate court accept factual findings of impartiality as fully supported by the record?
Perhaps a thorough inquiry into possible jury bias and the jurors' unanimous assertion that their impartiality was not impaired by a criminal incident during deliberations may be sufficient to protect the defendant's right to a fair and impartial jury if the criminal incident does not bear a close connection to the evidence of criminal conduct presented at trial. For example, in Robinson, the purse snatching had nothing in common with the facts of the murder case. Similarly, in Cannon, the theft of a few razor blades did not have a sufficiently close connection to the facts of the murder case to invoke the implied bias doctrine. Finally, in Novak, the minor incident on the train after a day of trial bore little resemblance to the facts of the murder and armed robbery case on trial. However, all of these cases are distinguishable from the present case, which does involve a strikingly close connection between the criminal incident and the facts of the case. Consider the following facts:
(1) The prosecution's theory of the case was that a burglar made an unforced entry with a key into Lisa Tyson's apartment, intending to steal small, easily concealed items. The burglar was taken by surprise when Tyson suddenly entered the apartment. The burglar then struggled with Tyson, fatally stabbed her and fled.
(2) Hunley's first trial ended in a mistrial when the jury was deadlocked at 7 to 5 in favor of acquittal.
(3) At the end of Hunley's second trial, the jury deliberated until 10:00 p.m., and stood at 8 to 4 in favor of conviction. At that point, the foreman informed the court that the jury was unlikely to reach a decision within an hour. Deliberations were recessed and the jury was sequestered that night in a motel.
(4) During that same night, a burglar made an unforced entry with a pass key into two adjacent motel rooms housing four jurors. The burglar stole several small, easily concealable items from the jurors' rooms and disappeared. All twelve jurors were notified of the incident, and were questioned by police. The jurors expressed concern over the incident.
(5) Later that morning, the jurors resumed deliberations. Despite the foreman's prediction the night before that the jury could not reach a verdict in one hour, the jury in fact rendered a guilty verdict within one hour. The four jurors who had voted "not guilty" before the burglary changed their votes to "guilty." Two of these four jurors, including the foreman, had been victims of the burglary the night before.
(6) In support of Hunley's motion for a mistrial, Hunley submitted the affidavit of Professor Hans Zeisel, a University of Chicago law professor and a recognized jury expert. Professor Zeisel concluded that the jury burglary seriously reduced the probabilities that the jury would render a verdict other than guilty. Furthermore, the jurors' denial of bias after the verdict was unreliable, not because the jurors were dishonest, but because "the confession of bias under these circumstances would be a confession of intellectual or moral deficiency;" thus producing an "unconscious bias." Zeisel affidavit at paras. 17-18.
While no single fact is sufficient per se to demonstrate presumptive bias, the series of events viewed as a whole sufficiently demonstrate a presumptive bias. The jury burglary placed at least four jurors in the shoes of the victim. It is likely that the jurors thought about what might have happened if they were awakened during the night and had surprised the burglar -- perhaps they would have also experienced a violent confrontation with the burglar. The factual connection between the jury burglary and the burglary on trial is significant -- both involved unforced entries into a person's living quarters, apparently with a misappropriated or stolen key, in order to steal small, easily concealed items. Combine this factual connection with the remarkably quick turnaround of the four holdout jurors, including two who were burglary victims, and the circumstances suggest that bias must be presumed as a matter of law. None of the cases relied upon by the Illinois Appellate Court involve such a close connection between the jurors' criminal victimization and the criminal conduct on trial. Nor do those cases involve a situation where four jurors, including two of the recent victims, quickly changed their votes from "not guilty" to "guilty." Robinson, Cannon, and Novak are distinguishable from the facts of this case. Bias against Hunley must be presumed.
Maurice Hunley's petition for a writ of habeas corpus is granted. Execution of the writ is stayed on the condition that the State of Illinois grant petitioner a new trial within a reasonable time, not to exceed 120 days.
Suzanne B. Conlon
United States District Judge
January 27, 1992