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Juror Missed Trial, Then Deliberated. Maybe. Meh. She's Guilty.

By William Peacock, Esq. on July 26, 2013 | Last updated on March 21, 2019

Once upon a time, there was a juror in an attempted robbery trial. The defendant, Anna Castillo, allegedly accosted a handful of people with a pistol, tried to rob them, and somehow failed. She robbed a couple others as well, but that case was handled separately.

The juror, for an unknown personal reason, missed the second day of the three-day trial. The highlights of that day included additional prosecutorial evidence.

Children, what happened next is the real question. In post-conviction state court proceedings, the State of Florida's floundering attorneys convinced the courts that the juror did not miss that second day and did participate in deliberations leading to a guilty verdict. However, in the federal habeas case, a different group of attorneys, also representing Florida, conceded that the juror did miss that day, but now, they claim that she didn't take part in the deliberations.

How do you play lost-and-found with a juror? The dissent is far more clear on this point than the majority. Apparently, after much discussion about the juror's absence, an unsuccessful objection to continuing with an alternate juror, and many other references to the composition of the jury post-absence, there is only a single reference to the phantom juror in the mistake-ridden record.

In short, a typo is to blame for all of this litigation.

In any case, due to the inconsistent positions of the state, and the muddled mess of a record replete with mistakes, the majority decided to err on the side of the convicted, and take all assumptions in her favor.

Assuming that the worst-case scenario was true, and the phantom juror did disappear, yet deliberate, Castillo's counsel hypothetically should have objected. Failure to do so would be ineffective assistance of counsel per Strickland v. Washington. However, both the District Court and the Eleventh Circuit agree -- Castillo can't show actual prejudice.

There were three days of testimony, all of it by the prosecution. If a juror can convict based on days one and three, that missing day of testimony would only make a conviction more likely, right? "Chances for acquittal vary inversely with the amount of incriminating evidence ... "

(Sidebar: We beg to differ. A truly awful witness can make or break a case. Then again, such a hypothetical witness probably would have convinced the present jurors of innocence as well.)

Strickland's actual prejudice test isn't met here. The district court relied on Cronic to hold that the failure to object to in-and-out jurors was per se prejudicial. Alas, it didn't read Cronic closely enough, as its exceptions to Strickland's actual prejudice only apply in three very narrow instances:

  1. there is a "complete denial of counsel" at a "critical stage" of the trial,
  2. "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," or
  3. under the "circumstances the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair."

Castillo's attorney was present during the entirety of the trial. He made good arguments, cross-examined witnesses, had a case strategy, and even delivered opening and closing statements. He also showed no signs of total impairment per the third instance.

No Cronic exception, no Strickland actual prejudice, no ineffective assistance claim, even if we believed the phantom juror nonsense.

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