Post-verdict Attorney/Juror Contact and Due Diligence in Georgia’s Walker County Superior Court

By Edmund Costikyan, CLS ’20

If you’re a true crime podcast fan, you may have heard the name Joey Watkins. Watkins is one of a small but growing group of defendants who has had his case reinvestigated and told to an audience of millions of podcast subscribers. Serial, a podcast known for its deeply affecting series on the case of Adnan Syed, initially popularized this phenomenon. Watkins, who, like Syed, has maintained his claim of innocence throughout nearly two decades of incarceration, is represented by the Georgia Innocence Project, and had his story told on the true crime podcast Undisclosed, which is dedicated to investigating potential wrongful convictions. However, it is not his strong claim of actual innocence which makes a recent decision by the Georgia Superior Court of Walker County in his case problematic. Rather, this decision raises a long-standing justice system concern — the protection of jurors once they have been discharged from their duty from “[v]exatious or harassing investigations[.]” Model Code of Prof’l Responsibility EC 7-30 (Am. Bar Ass’n 1983).

In Watkins v. Ballinger, Watkin’s habeas petition to the Superior Court, one of the grounds upon which Watkins challenges his incarceration is that “[j]uror misconduct resulted in a violation of [his] rights under the Fifth, Sixth, and 14th Amendments… and Article I, Section I, Paragraphs I and XIV or the Georgia Constitution…” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.  The alleged juror misconduct, discovered fifteen years after Watkins’ conviction during a 2016 interview with Undisclosed reporter and attorney Susan Simpson, was that one juror, during deliberations, had taken it upon herself to do a drive test of an alleged aspect of the charged offense, and, as a result of that independent drive test, changed her vote from not guilty to guilty.  Watkins Application for Writ of Habeas Corpus, Juror Aff. 5 Filed Jan 18 2017. This is a violation of the directions the jury was given by the trial court, which instructed the jurors that they “ha[d] to base [their] decision in any trial like this on what [they] hear[d] in the courtroom from the witness stand and [they] c[ouldn’t] go investigating anything on [their] own.” Addendum to Part II of Watkins Application for Writ of Habeas at 2, quoting Trial Transcript at 411-412. As such, Watkins claim was that this violated his constitutional rights “to be present at all critical stages of his trial and to confront the witnesses against him.” Watkins Application for Writ of Habeas at 5 Filed Jan 18 2017.

The court’s Judge Don W. Thompson declined to address the merits of the argument, instead dismissing the petition for habeas corpus relief as untimely on the grounds that Watkins, “with the exercise of due diligence, could have spoken with this juror once his trial was over in 2001 to determine whether any juror misconduct had occurred.” Order Dismissing Petition as Untimely and Successive at 5 Filed Jul 19 2018. He determined that the statute allowing Watkins to petition for habeas relief contains a one-year statute of limitations which starts to run “when a person knows or through due diligence could discover the vital facts, regardless of when their legal significance is discovered.” Id. at 4, citing Cole v. Warden, 768 F.3d 1150 (11th Cir. 2014), cert,denied, 135 S.Ct. 1905 (2015). See also O.C.G.A. § 9-14-42(c); 28 U.S.C. § 2244(d)(1)(D).

This has problematic implications for defendants and their attorneys in Georgia, but perhaps even more for the jurors themselves. If any potential juror misconduct must be discovered and brought to the attention of the court within one year in order to be considered timely, this means that every defendant who loses at trial has a pressing incentive to immediately and exhaustively interview every juror about all aspects of their deliberations in the hope of discovering potentially actionable juror misconduct. While both the ABA Model Code of Professional Responsibility and the Georgia Rules of Professional Conduct state that a lawyer may communicate with jurors after a trial, these communications must be limited and are often regarded with skepticism. Model Code of Prof’l Responsibility EC 7-29  (Am. Bar Ass’n 1983). The Georgia Rules of Professional Conduct Rule 3.5 provides, in pertinent part, that “[A] lawyer shall not, without regard to whether the lawyer represents a client in the matter:

3. communicate with a juror or prospective juror after discharge of the jury if:

1. 1. the communication is prohibited by law or court order; or
   2. the juror has made known to the lawyer a desire not to communicate; or
   3. the communication involves misrepresentation, coercion, duress or harassment.”

Given these concerns, does it make sense for the Georgia courts to require that an attorney, in order to have acted in due diligence, must contact all the jurors who had decided her client’s verdict and interview them about what transpired in the jury room within such a short period after the trial, and ensure that she gets the information then or else relinquish her client’s chance to appeal on the grounds of any juror misconduct? Doesn’t such a requirement implicate concerns that jurors will feel coerced, harassed, or under duress by the interviews the Walker County Superior Court now makes mandatory in this decision’s definition of due diligence? Hopefully, Watkins will be permitted to appeal this ruling to the Georgia Supreme Court, and we will see how it responds to these questions.

If you’d like to learn more about Watkins’s case, you can listen to the reinvestigation and in-depth discussion of his case in season 2 of the incredible true crime podcastUndisclosed at http://undisclosed-podcast.com/episodes/season-2/, or at the Georgia Innocence Project’s active cases page at https://www.georgiainnocenceproject.org/active-cases-2/.