Where Ethics and Due Process Diverge: Lawyer’s Unethical Conduct as a Juror Not Enough to Overturn Conviction but Enough for California Bar Sanctions

In an unpublished decision, the 9th U.S. Court of Appeals affirmed the U.S. District Court for the Southern District of California’s decision denying Donald McNeely’s habeas corpus petition. Among the defendant’s basis for his request, was the impropriety of a biased juror who failed to reveal he was an attorney during voir dire and subsequently blogged about the jury deliberations during and after the trial.

Juror, Frank Wilson, when asked what his occupation was during voir dire, claimed he was a “project manager” for the technology company with which he was employed. The majority of his work at the company was non-legal, but, according to McNeely’s lawyer, the juror did some legal work for the company when necessary and was winding up his own private practice at the time. The Court of Appeals found that while Wilson’s statements during voir dire were “incomplete” they were nevertheless “technically correct” and not indicative of bias. As to the blog posts, the court held that blogging before the conclusion of deliberations was improper, but it was not unreasonable to conclude that Wilson was not biased.

While Wilson’s actions may not have warranted a granting of McNeely’s habeas corpus petition, they were enough for the California Bar to place him on a two year probation, suspend his license for 45 days, and order him to take the MPRE within one year.

Click here to read more in the ABA Journal, here for the Court of Appeals’ decision, and here for the California Bar’s order.

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