Due Process, 6th Amendment and Emails

As Wikipedia notes, due process “is the principle that the government must respect all of the legal rights that are owed to a person according to the law.” As Wikipedia also explains, in the United States the right to due process is guaranteed by two distinct provisions of the Bill of Rights:

The Fifth Amendment’s guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applies to the states.

The 5^th Amendment states that “[n]o person shall . . be deprived of life, liberty, or property, without due process of law”. The correlate provision of the 14^th Amendment states that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law”.

One other bit of preface, then we’ll get to the case this post will examine. As Wikipedia also notes, the Bill of Rights – the first ten amendments to the U.S. Constitution – have always applied to the federal government. They generally did not apply to the states until about a century ago, when the Supreme Court started “incorporating” provisions of the Bill of Rights into the 14^th Amendment, and applying them to the states. If you want to know more about that, check out Wikipedia’s entry on the incorporation of the Bill of Rights into the 14^th Amendment.

That brings us to State v. Irby, __ P.3d __, 2011 WL 241971 (Washington Supreme Court 2011). After being convicted of “first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary”, Terrance Irby appealed to the Washington Court of Appeals, which reversed the convictions and remanded the case for a new trial. State v. Irby, 147 Wash. App. 1004, 2008 WL 4616712 (Washington Court of Appeals 2008). The prosecution – the State – appealed the Court of Appeals’ decision to the Washington Supreme Court. State v. Irby, supra.

Neither the Court of Appeals’ nor the Supreme Court’s opinions outline the facts that led to Irby’s being charged with the crimes he was convicted of. All I know is that the “charges arose out of the bludgeoning death of James Rock.” State v. Irby, supra. It doesn’t really matter, though, because neither court was dealing with issues that went to the factual or legal merits of the convictions, as such. Instead, they were dealing with a procedural issue involving jury selection:

During pretrial proceedings on December 27, 2006, counsel for both parties agreed that there was no need for them or [Irby] to be present on the first day of jury selection; at that time, the court would simply provide prospective jurors with a written questionnaire and give them the necessary oath. The parties would then question the jurors the following morning. On January 2, 2007, all prospective jurors were sworn regarding qualifications and voir dire, after which the court gave jurors the questionnaire. An attorney for each party was present, but [Irby] was not. That afternoon, the court sent an e-mail message to counsel, suggesting the removal of certain potential jurors from the panel:

`I note that 3, 23, 42 and 59 were excused after one week by the Court Administrator. 17 home schools, and 3 weeks is a long time. 77 has a business hardship. 36, 48, 49, and 53 had a parent murdered. Any thoughts? If we're going to let any go, I'd like to do it today.’

Defense counsel responded, in an e-mail, that he had no objection to releasing some or all of these jurors. A later e-mail from the court indicated that the State objected to releasing jurors 36, 48, and 49. The record does not reflect how the court received this information.

The clerk's minutes for January 2, 2007, note, `In chambers not on the record. Counsel stipulate to excusing the following jurors for cause: # 7, 17, 23, 42, 53, 59 & 77.’ The trial court never conducted any proceedings on the record in excusing these seven jurors.

State v. Irby, 147 Wash. App. 1004, 2008 WL 4616712, supra. The trial judge also apparently never consulted Irby “about the dismissal of any of the jurors who had taken the juror's oath.” State v. Irby, supra.

On the following day, jury selection continued, this time in open court and in Irby's presence. The State and Irby agreed at that time to release juror 36 for cause. Jury selection, which proceeded numerically, ultimately reached juror 37. Thus, of the jurors identified in the judge's initial e-mail, only jurors 7, 17, 23, and 36 had a chance to sit on Irby's jury.

State v. Irby, supra.

In appealing his convictions to the Washington Court of Appeals, Irby claimed he was “denied his right to be present at all critical stages of trial . . . because of the manner in which the trial court conducted a part of voir dire.” State v. Irby, 147 Wash. App. 1004, 2008 WL 4616712, supra. The Court of Appeals agreed, and therefore reversed his convictions. State v. Irby, 147 Wash. App. 1004, 2008 WL 4616712, supra. As I noted earlier, the State appealed the reversal; in its appeal to the Supreme Court, the State “contend[ed] that Irby did not have a right to be present at” the relevant portion of the voir dire. State v. Irby, supra.

The Supreme Court began its analysis of the State’s argument by noting that a criminal

defendant has a fundamental right to be present at all critical stages of a trial. Rushen v. Spain, 464 U.S. 114 (1982). Although the right to be present is rooted to a large extent in the confrontation clause of the Sixth Amendment to the United States Constitution, the U.S. Supreme Court has recognized that this right is also `protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.’ U.S. v. Gagnon, 470 U.S. 522 (1985).

In that vein, the Court has said a defendant has a right to be present at a proceeding `whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ Snyder v. Massachusetts, 291 U.S. 97 (1934). . . . The Court . . . indicate[d], however, that because the relationship between the defendant's presence and his `opportunity to defend’ must be `reasonably substantial,’ a defendant does not have a right to be present when his or her `presence would be useless, or the benefit but a shadow.’ Id. . . .

In the Irby case, the State argued that the

`e-mail exchange between the [trial] court and counsel [for the State and Irby] regarding excusing potential jurors’ was not a `critical stage[ ]’ of the trial because it was not substantially related to Irby's `opportunity to defend against the charge.’

State v. Irby, supra.

The Supreme Court noted that, in earlier cases, it had held that a defendant (i) has a due process right to be present at the verdict (ii) but does not have such a right to be present at in-chambers or bench conferences between the judge and attorneys for the parties. State v. Irby, supra. The State argued that the “`e-mail exchange” between the trial judge and the attorneys for the parties in this case was similar to a “sidebar or chambers conference, proceedings” that the Supreme Court had said “a defendant has no due process right to attend.” State v. Irby, supra.

The Supreme Court was not persuaded:

We disagree with the State's analogy to those sorts of proceedings. In our judgment, the e-mail exchange was a portion of the jury selection process. We say that because this novel proceeding did not simply address the general qualifications of 10 potential jurors, but instead tested their fitness to serve as jurors in this particular case.

State v. Irby, supra. The court noted that the fact the jurors were being evaluated and

dismissed for cause distinguishes this proceeding from other, ostensibly similar proceedings that courts have held a defendant does not have the right to attend. . . . [T]he questionnaire . . . given to the jurors after [their] oath was administered indicated that filling out the questionnaire was `part of the jury selection process,’ and `designed to elicit information with respect to your qualifications to sit as a juror in this case.’ . . .

The subsequent exchange of e-mails resulted in decisions being made, at least in part, on the basis of the questionnaire about the ability of particular jurors to try this specific case. This decision making was clearly a part of the jury selection process, a part that Irby did not agree to miss.

State v. Irby, supra.

The Washington Supreme Court then addressed whether Irby had “a right to be present at this portion of the jury selection process”. State v. Irby, supra. After reviewing several state and federal cases, it noted that in Gomez v. U.S., 490 U.S. 858 (1989) the U.S. Supreme Court held that jury selection is a critical state of the

criminal proceeding, during which the defendant has a constitutional right to be present.’ The court pointed out that it is `the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, or predisposition about the defendant's culpability.’

State v. Irby, supra.

The state Supreme Court then applied these principles to what happened here:

`[T]he work of empaneling the jury’ began on January 2, when jurors were sworn and completed their questionnaires. The work was ongoing when the trial judge e-mailed Irby's attorneys and the prosecutor about potentially dismissing 10 jurors, not only for hardship, but because 4 jurors had parents who had been murdered. . . . Irby was not present during this discussion because he was in his cell. Furthermore, because the trial judge sent his initial e-mail at 1:02 p.m., and Irby's attorneys replied at 1:53 p.m., it is unlikely that the attorneys spoke to Irby about the email. . .

Even if `[d]efense counsel had time to . . . consult him regarding excusing some of the jurors . . . ,’ as the State suggests, . . . `where . . . personal presence is necessary in point of law, the record must show the fact.’ . . . [C]onducting jury selection in Irby's absence was a violation of his right under the due process clause of the Fourteenth Amendment to the United States Constitution to be present at this critical stage of trial.

State v. Irby, supra.

The Supreme Court therefore affirmed the Court of Appeals’ decision reversing Irby’s convictions and remanding the matter for a new trial. State v. Irby, supra.