An example how a jury can get tainted:
By Nancy Bowman DDN
Contributing Writer
TROY – A rare glimpse inside jury deliberations unfolded Friday in a Miami County courtroom where a judge heard testimony on a complaint that the jury foreman in a 2014 murder trial told others in deliberations that he had never seen the accused in the church that both men said they attended.
The evidentiary hearing on the claim of juror misconduct in the murder trial of Patrick McGail of Troy was ordered in November by Judge Walter Rice in United States District Court in Dayton. McGail was one of three young men convicted in the 2013 shooting death of Nathan Wintrow.
If the claims are found to have basis, a new trial could be ordered.
Lawyers for McGail, who is serving 24 years to life for murder, aggravated robbery and aggravated burglary, claimed in the federal court action he was deprived of his constitutional rights to an impartial jury and to confront evidence against him when the juror allegedly commented about not seeing McGail or his family in church. McGail in his testimony talked about his family and their church activities.
“My decision was influenced to vote ‘guilty’ when the jury foreman … told the jury that he goes to St. Patrick’s church the same church that McGail testified going to and that he had never seen Patrick or his family at that church, so McGail must be lying,” juror Kylie Spiers-Kautz wrote in the affidavit, according to the federal court’s ruling. “This information influenced me to not believe Patrick’s testimony.”
Rice said the evidentiary hearing should look at what the jury foreperson said about McGail and/or his family’s church involvement and its impact on the jury. Rice said a hearing had to be held within 90 days and asked to be notified of the hearing results.
Common Pleas Judge Stacy Wall held the evidentiary hearing on the limited issue of the alleged statement . She, prosecutors and lawyers for McGail heard testimony from 11 of the 12 jurors. A recorded telephone discussion about the deliberations between Jim Taylor, a prosecutor’s investigator, and the 12th juror, who was in Florida, was included in evidence Wall will consider. She will file a decision later.
Westgerdes testified that he did comment on McGail and church. “I just made a one-time statement, he hadn’t been in church lately.” He further said that those jurors who discussed his comment “all agreed what happened a long time ago didn’t pertain to when this happened,” Westgerdes said. Trial testimony dealt with McGail’s church activity when he was younger.Spiers-Kautz and foreman David Westgerdes testified extensively about what was and was not said and the tone of deliberations.
Spiers-Kautz said Westgerdes wouldn’t ask questions she had to Judge Christopher Gee and ignored her. Westgerdes said the church attendance statement “just kept ringing in my head.” She said later, though, that during the polling of each juror on their verdict that she wanted to say, “not guilty” but didn’t have the courage.
Prosecutor Tony Kendell questioned Spiers-Kautz about the affidavit she said was drawn up at the office of McGail’s then defense lawyer Christopher Bucio. Kendell questioned her about her participation in a post-trial rally at the courthouse alleging injustice and phone and text records showing she had 14 telephone conversations with Bucio and at least 179 text messages in the weeks following the trial and the discussion of the affidavit.
The other nine jurors were asked if they followed the trial judge’s instructions to consider only evidence heard in the courtroom and whether they heard the foreman’s comment about the church attendance. Several said they didn’t hear any such comment while the others who did said it didn’t influence their decision to convict.
Those jurors also said they didn’t witness any bullying in the jury room nor did they remember the foreman not sending questions raised by jurors to the judge for answers.
Defense lawyer Eric Eckes asked jurors if their recollection of deliberations had faded with the passing of more than four years. He and Kendell questioned differences in earlier statements and testimony of both Westgerdes and Spiers-Kautz.
The affidavit claiming juror misconduct was filed as part of motions with the local court after the trial and was included in decisions by both the local court and the 2nd District Court of Appeals to uphold the conviction.
Troy police said Wintrow died after being shot in October 2013 in his home on Canal Street in Troy. Also convicted in the death were Brandon Terrel, who was sentenced to 14 years, and Jason Sowers, who shot Wintrow and was sentenced to 18 years to life. They testified against McGail.
, can anyone explain how & why & when a defendant pays for their own monitoring....if they haven't been convicted of anything, yet?
