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Name: Sassounian v. Roe
Case #: 98-56747
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/26/2000
Subsequent History: None

The appellate court reversed the district court’s denial of the habeas petition as it related to the special circumstance finding of murder because of nationality or national origin. (Pen. Code, sec. 190.2, subd. (16).) After the jury had deliberated for 15 days on the two special circumstance findings, a juror mentioned evidence that had been heard by the jury but ordered excluded by the trial court. The excluded evidence concerned a 1982 phone call received by a UPI reporter from an individual claiming credit for the homicide and membership in an organization called the Commandos for the Armenian Genocide. A true finding had been returned within an hour that this information was discussed. The trial court’s attention was brought to this matter during the penalty phase. Three other jurors could remember discussing the topic, but the remainder could not remember. The foreman remembered the incident, but said that, “We felt that since it wasn’t mentioned in court, it wasn’t something we could elaborate on.” While the district court had ruled that there was no jury misconduct, the Ninth Circuit found that there was no doubt that the evidence was considered in light of the statements of the four jurors. In light of the quick return of the verdict after the information’s consideration, which had been preceded by fifteen days of deliberation, the appellate court concluded the error had a “substantial and injurious impact” within the meaning of Brecht. [Note: in the federal courts, the jurors are competent to state how evidence was considered, but not its subjective impact.] Judge Silverman dissented from the court’s finding the jury misconduct prejudicial.