Criminal Practice – Fair trial not affected by use of hearing-impaired juror

Where the trial judge overseeing the defendant’s trial for first-degree murder and armed robbery was aware of a juror’s hearing impairment, and took steps to address it, including repeatedly questioning the juror and confirming with counsel that they could proceed, the defendant’s fair-trial claims were rejected.

Background

A jury found James Bryant guilty of first-degree murder and armed robbery, and he was sentenced to death for the murder and 20 years’ imprisonment for the robbery.

After exhausting his state remedies, Bryant applied to the district court under 28 U.S.C. § 2254 for habeas relief, and the court vacated his death sentence. The court concluded that the state post-conviction court (1) unreasonably determined that a juror who was hearing impaired was competent to sit on the jury and unreasonably applied clearly established federal law in so concluding and (2) unreasonably concluded that Bryant’s state trial counsel was not ineffective in allowing the hearing-impaired juror to sit on the jury. The court, however, rejected a claim by Bryant that his trial counsel was ineffective for failing to press a Batson challenge.

Impairment

Bryant contended that his rights were violated when he was convicted and sentenced to death by a jury that included a “hearing impaired juror who did not hear portions of the trial testimony.” The state post-conviction court disagreed.

On appeal, however, the district court reversed the state post-conviction court. The district court clearly disagreed with the findings of fact made by the state post-conviction court, and it did so by collecting some of the evidence to support its position. But it failed to take account of much of the evidence relied on by both the state trial judge and the state post-conviction court.

The record makes plain that the trial judge was aware of the juror’s hearing impairment. Indeed, the judge was actively involved in ensuring that the juror could understand the proceedings and questioned the juror several times as to her ability to hear. Based on this record and in light of the deference owed the trial judge, who was on the scene, and the post-conviction court under § 2254(d), the federal habeas court should not have concluded that the post-conviction court’s factual findings regarding the juror’s ability to hear were “sufficiently against the weight of the evidence” so as to be “objectively unreasonable” under § 2254(d).

The remaining question—whether, in ruling on the issue, the post-conviction court unreasonably applied federal law “as determined by the Supreme Court of the United States”—is more fluid because Bryant has identified no Supreme Court decision that has applied due process principles to the circumstance where a juror is hearing impaired. Due process does include a requirement that a defendant be tried by a “competent jury, which means a jury capable of ‘rendering an impartial verdict, based on the evidence and the law.’” However the post-conviction court did not unreasonably apply federal law in determining that the juror’s presence on the jury did not violate Bryant’s right to a competent jury.

Defense counsel

The state also challenges the district court’s ruling that Bryant’s trial counsel was ineffective in failing to insist on the removal of the juror, arguing that the court similarly violated the standards imposed by § 2254(d) by not giving sufficient deference to the state post-conviction court. The court agrees.

The district court concluded that “there was no valid strategy to retain a juror whose hearing was substantially impaired.” These findings are not only beyond the district court’s role in a § 2254 proceeding, but they also rest on its own credibility determinations. It is apparent from the record that the defense counsel’s decision to keep the juror on the jury was not so beyond the pale that every fair-minded jurist would conclude that it was unsound trial strategy.

Batson

Bryant advances, as an additional ground for affirmance of the relief granted by the district court, a claim that his trial counsel was ineffective in properly arguing a Batson claim. Because Bryant has failed to satisfy the requirement of Martinez that his underlying Batson-based claim of ineffective assistance was sufficiently substantial to allow this court to excuse his procedural default of that claim, the district court’s ruling on this issue is affirmed.

Affirmed in part, reversed in part and remanded with instructions.

Dissent

(Thacker, J.): In considering whether Bryant’s death sentence should stand, the state post-conviction relief court relied on factual findings that were “sufficiently against the weight of the evidence” and “objectively unreasonable.” The district court recognized as much, and I cannot join the majority in reversing its reasoned conclusion.

Bryant v. Stephan (Lawyers Weekly No. 001-106-21, 73 pp.) (Paul V. Niemeyer, J.) (Stephanie Thacker, J., dissenting) Case No. 20-4. May 24, 2021. From D.S.C. (Bruce Bowe Hendricks, J.) Michael D. Ross for Appellants. Lindsey Vann for Appellee.