Noncitizen juror might lead court to void conviction

Highest Md. court to decide whether conviction is invalid

March 13, 2007|By Andrea F. Siegel | Andrea F. Siegel,sun reporter

The verdict was in: A Howard County jury had convicted a 33-year-old Columbia man of second-degree murder and child abuse in the beating death of his toddler stepson.

A day later, however, the jury commissioner heard from Adeyemi Alade, who said he was not a U.S. citizen - a prime reason for disqualification from serving on a jury in Maryland - but inadvertently failed to say so on the juror questionnaire.

Now, nearly three years later, the state's highest court is being asked whether Alade's admission is cause to overturn Marcus Dannon Owens' guilty verdict in a case that points to courts' reliance on whatever potential jurors write on their forms and raises the question of what a jury of one's peers consists of.

The case will be argued today before the Court of Appeals.

Attorneys for Owens maintain that having Alade, a Nigerian citizen who was in the United States legally, on the jury is a constitutional violation, noting that people who are not U.S. citizens owe no allegiance to the United States and its people.

Louis P. Willemin, the deputy public defender who was Owens' lawyer at his trial, said citizenship "matters a great deal. It has to do with shared conventions of being an American citizen and shared knowledge."

Precedent does not clarify the issue. American colonists complained that King George III's holding of jury trials for them overseas was a form of oppression, the defense brief to the court notes. Yet in the 19th century, federal juries had noncitizens on them, a University of Maryland law professor noted.

The attorney general's office says the fundamental constitutional right to a jury does not say that that jury must be made up only of U.S. citizens. It is state law that says jurors are to be citizens. The office made the argument that because the defense lawyers didn't act sooner, they lost the right to challenge the selection, which won over the state's intermediate appeals court last year.

"Owens had a reasonable opportunity to challenge Mr. Alade's qualifications to serve as a juror during the [jury selection] process," the office argued in legal briefs. By not taking advantage of that, Owens lost the chance to make the argument later, the office said.

Lower courts also said Owens' lawyers failed to show that Alade was biased.

Defense lawyers also could have asked the judge to remove Alade, a graduate mechanical engineering student at University of Maryland, Baltimore County, from the jury for bias or used one of its other challenges to remove him. They did not.

Still, Alade's possible sway over the other 11 jurors is unknown. "It is genuinely confusing because the person may have had influence," said Mark A. Graber, a University of Maryland, College Park government and politics professor. "But it was unbiased influence."

On the other hand, he said, defense lawyers - and prosecutors and judges - rely on people's answers on the jury questionnaire sent to their homes before being called for jury duty.

Statewide, the list of potential jurors comes from "motor-voter" rolls, consisting of registered voters and people who hold Maryland Motor Vehicle Administration-issued driver's licenses and identification cards. A person has to be a citizen to vote, but that is not true of the MVA records.

The issue of whether potential jurors are citizens has come up at the state's Council on Jury Use and Management, mostly because of the wasted effort of sending forms to people who are ineligible to be jurors. The questionnaire advises tens of thousands of people in Maryland every month that felons and noncitizens are not permitted to serve on a jury.

Officials do not investigate would-be jurors' immigration status or criminal past before or after mailing the forms. "Nobody goes out and does a background check," said Dennis M. Sweeney, the Howard County Circuit judge who was chairman of the Council on Jury Use and Management. "It would be a horrendous nightmare."

Lying on the form is a misdemeanor, though Sweeney has not heard of anyone being jailed for doing so. Alade's was considered an honest mistake.

On June 10, 2004, the jury convicted Owens of killing Kevonte Davis, his wife's 2-year-old son, on July 30, 2003, while he was watching Kevonte, his wife's older child and the couple's infant. Owens has maintained that he is not guilty.

University of Baltimore law professor Byron L. Warnken said the top court could consider the jury verdict invalid because if Alade is disqualified, only 11 jurors remain. There is no deadline for the court to issue a ruling.

Owens is also challenging the admissibility of his statement to police in which he denied that he had a role in Kevonte's death. Defense lawyers contend that he should have been advised of his rights to be silent and have a lawyer. Prosecutors say that because he was not in custody at the time, no such warnings were needed.

andrea.siegel@baltsun.com

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