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New trial sought because juror didn’t reveal he was an attorney and blogged about case

Posted Oct 11, 2013 10:05 AM CDT
By Martha Neil

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A burglar who was sentenced to nearly 39 years in prison as a habitual offender is asking a federal appeals court to reverse his conviction due to the conduct of a California lawyer who served as foreman of the jury that convicted him.

Defendant Donald R. McNeely initially filed the habeas corpus petition pro se, contending, among other claims, that the foreman violated his constitutional rights by failing to identify himself as a practicing lawyer during voir dire and blogging about the case, both before and after it was decided, explains a 2010 report (PDF) by a federal magistrate judge.

The report recaps posts by the unidentified attorney, who writes at one point: "Nowhere do I recall the jury instructions mandating that I can't post comments in my blog about the trial."

While the attorney apparently told the truth about where he worked when questioned during voir dire, he didn't volunteer additional information that likely would have resulted in his being struck by defense counsel, reports Courthouse News. For example, the foreman was still winding up his private law practice, and had worked as a lawyer representing the technology company at which he was then employed in a new, largely non-legal job.

The California Supreme Court at one point sent the case back to the trial court, but it upheld the conviction. A federal judge in San Diego then denied McNeely's habeas petition in 2011, resulting in an appeal of that ruling to the 9th U.S. Circuit Court of Appeals.

Articles published by Arizona Attorney and DRI Today note that the foreman had his California law license suspended for 45 days, due to the case.

Several articles published on an American Society of Trial Consultants blog in 2007 provide further details:

Deliberations: "Blogging Jurors, Part I: The Bad (Or, The Burglary Trial As Legal Thriller)"

Deliberations: "Blogging Jurors, Part II: Some Relevant Law"

Deliberations: "Blogging Jurors, Part III: The Good"

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