Defense challenges ‘fact’ cited in court decision

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Sentencing has again been delayed in a federal criminal case where the defense is challenging the judge’s decision that a guilty verdict in March was not affected by a juror who should not have served because he had a felony record.

Defendants Matthew Nix and Earl McCoy were convicted of robbery, weapons and drug charges in March. After the verdict, attorney Michael Witmer, who represents Nix, discovered that juror James Bradford Jr. had a felony conviction.

Bradford never revealed his criminal history in an online questionnaire, or during courtroom questioning. During a hearing in June, Bradford testified that he didn’t remember most of his criminal past and he didn’t think it was pertinent because the crimes were committed before he was 21.

U.S. District Court Judge Elizabeth A. Wolford ruled that Bradford, who she referred to as Juror No. 3 in her decision, “admittedly blundered his way onto the jury — but he did not smuggle his way onto the jury through intentional deceit.”

“The presence of Juror No. 3 did not destroy the impartiality of the jury in this case,” she wrote in a decision filed Aug. 24.

The defendants, who face a maximum penalty of life in prison and a $3 million fine, were originally scheduled to be sentenced July 12. That date was changed to Sept. 8, after a hearing on a motion for a new trial because of Bradford’s jury service.

The Sept. 8 date was changed to Sept. 29 last week after Robert Wood, who represents McCoy, filed a new motion challenging Wolford’s decision on Bradford.

The motion is focused on a statement in Wolford’s decision citing a transcript of a May 15 court session in the case: Wolford wrote: “ … in fact, once selected to serve, (Bradford) left the courtroom as the court was still informing the jurors about some housekeeping matters.”

The citation refers to a statement made by Assistant U.S. Attorney Everardo A. Rodriguez: “After the jury got picked, they’re seated in the box and your honor is giving them … a little bit of preliminary instructions, (Bradford) got up and walked out before your honor was even done giving instructions, which again, suggested that he was not happy about being on the jury.”

Wood argues that Wolford accepted Rodriguez’ statement as fact and used it as a basis for her decision. The defense says the issue is significant because it relates to the question of whether or not Bradford wanted to serve on the jury.

“This statement was relied upon by the court in its decision as proof that the juror did not want to be selected to sit on the jury,” Wood wrote in a six-page affidavit filed Sept. 1.

“She credited that as a fact that occurred and that wasn’t brought up at the hearing and we didn’t even have a time to rebut it,” Witmer said Friday.

Wood also noted that Wolford’s decision was partly based on her observations of Bradford’s facial expressions, which she believed indicated he did not want to serve on the jury.

“If those observations of hers are coming in then we should have an opportunity to testify as to what our observations were too,” Wood said.

“Assuming she denies the motion, at least something should be clarified as to what exactly this person did,” he said.

Wood asked for a hearing with a different judge and temporarily assigned defense counsel because Wolford and the defense lawyers would be potential witnesses. But Wolford denied the request for a hearing, and will decide the motion on the basis of written submissions.

The U.S. Attorney’s Office declined to comment.