Okay so it wasn’t so much a tree as it was a hotel room and they weren’t kissing but rather “doin’ it”. Apparently, during the trial of Roberto Dunn, two jurors were “deliberating each other” (euphemisms solely mine) and two deputies who were charged with guarding the jurors were also “taking sexual liberties” (that’s a quote).

The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.

Dunn was originally charged with a capital felony, which makes these allegations all the more troubling (although he was eventually convicted of second degree murder).

Lisa Stroup, an assistant public defender now on the case, said the trial attorneys should have called the jurors as witnesses and quizzed them about the claims. That’s what Stroup is doing now.

Earlier this month, [Judge] Bush heard testimony from the letter writer, Jennifer Thompson. Other witnesses will be called Jan. 9, when the hearing continues.

…

In her letter, Thompson accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff’s deputies assigned to the case were having sex with each other while on duty at the hotel.

“Acts of sex and insubordination were scandalous and unspeakable …” Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.

Seems like the new proceedings are state habeas corpus proceedings, in which the allegations are ineffective assistance of counsel. In addition to the sexual allegations, there were other improprieties as well. A  sheriff’s deputy overheard some jurors commencing deliberations prior to the close of evidence. They were questioned briefly but allowed to stay on the same panel. The appellate court, in reviewing the conviction, blamed the trial attorneys:

The Missouri Court of Appeals upheld the conviction. Court documents say Dunn’s original attorneys declined when given the opportunity to present additional evidence of juror misconduct.

“Because defendant failed to establish that misconduct occurred, the state was not required to show that the jurors were not improperly influenced,” the appeals court decision says.

Dunn is lucky that the appellate court left the door open in this fashion. To see such a comment in a decision in a capital case would be a source of embarassment to the capital attorneys I know. How can one represent a defendant in a death case and not push as hard as possible for a mistrial when evidence of juror misconduct surfaces is beyond me.

Whether it is okay for jurors to have sex during deliberations, in a capital case no less, is probably not a question that courts have wrestled with frequently. But what is disappointing (and troublesome) is that this question may finally be answered 8 years after it should have been.

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