Potential Juror Misconduct in Death Penalty Retrial

November 17, 2022 Don Pumphrey, Jr. Criminal Defense, News & Announcements, Violent Crimes Social Share

At the beginning of the year, we covered Peter Avsenew’s trial—specifically how the Supreme Court overturned the defendant’s death sentence in the trial for two gruesome murders. The most recent incident to occur with the trial is the defense filing a motion for a new trial after accusing the jury of misconduct.

This article will cover the details of the case, along with information on juror misconduct in Florida.

What was the Case?

Peter Avsenew is accused of killing couple Stephen Adams and Kevin Powell in a gruesome 2010 murder. Avsenew’s defense attorneys, Gabe Ermine and Rachel Newman filed a motion last week after accusing the jury of misconduct. The allegations first came to light in October 2022, when a panelist came forward to claim that the defendant had not received a fair trial.

The penalty phase of Avsenew’s trial ended on October 12^th, 2022 with a unanimous decision to place the defendant back on death row. The panelist who came forward claimed that while the first part of the trial was “mostly fair,” the penalty phase was not.

“For the first part of the trial, I think mostly it was fair,” said the juror. “But then like the second part of the trial, that’s when a lot of stuff started happening that was…at the time I thought it was just laughing and joking around, and then at the end I realized what was really going on.”

Avsenew’s retrial took place this summer, where he was once again found guilty of the murders on June 10^th. The sentencing phase took place on October 12^th, which at the time was a unanimous decision to keep the death penalty.

According to the panelist who came forward, one of the other jurors allegedly brought up details from the first trial—specifically when Avsenew put up his middle finger to the victims’ families. The juror who came forward also accused another member of finding the letter that the defendant sent to the judge during the original trial.

The juror then proceeded to provide the defense team with a message chain from WhatsApp that was between the team of jurors. One of the jurors texted, “I have no idea what the attorney could even say to change swing [sic] the vote and little do that know we already know the answer.”

The text was sent on July 13^th, which was after the guilty verdict took place but several months before the penalty phase. “That’s correct,” another juror allegedly responded. “I think by now we all know which way we are voting.”

The juror that came forward told the defense that the jurors discussed watching “Evil Lives Here” during the penalty phase in October. The crime documentary series covers Avsenew’s case in Season 9, episode 2.

“Y’all [sic] be easy with the text,” one juror warned in the WhatsApp messages. “Don’t want ol’ Petey to find a way to get loose.”

Watching media on or about the trial is an example of juror misconduct, and the defense is now requesting a retrial due to the actions of the jury. Bob Jarvis of Nova Southeastern University explained that there is now a possibility of Avsenew getting released. “There is a strong likelihood, if there was such blatant misconduct in the second phase of the trial, there was misconduct in the first phase,” said the law professor.

Jarvis also explained that technology has begun to make it more and more difficult for jurors. “There is increasing likelihood a jury will stumble on information,” he said. “There is also a real temptation to be their own investigator, to say I’m going to get to the truth, I’m going to find out what really happened.”

The defense is now requesting that all jurors on the case get interviewed regarding the juror misconduct allegations. Ermine stated that he is “all but certain” that the defense will request a third trial.

 Avsenew was tried and convicted for the first time in 2018 when he was sentenced to the death penalty in Florida. The Supreme Court declared that the defendant’s constitutional rights were violated during the first trial due to his mother testifying against him remotely, although she could not see him on her monitor.

Juror Admits to Misconduct

In the case’s most recent update, one of the jurors from the trial admitted to juror misconduct. According to the report, the foreman admitted to watching the documentary about Avsenew’s case. The same juror also confessed to hearing about another juror reviewing the unredacted letter from the previous trial. However, that juror denied any wrongdoing the same day.

Gabe Ermine, Avsenew’s defense attorney, addressed that a new trial and penalty phase should be initiated after the juror’s admission. “I am not conceding only the penalty phase,” Ermine said. “I am going to argue that he is entitled to a new trial and, if needed, a new penalty phase.”

After one of the jurors claimed the guilty phase was “mostly fair,” Ermine argued that is not what his client deserves. “I don’t want a ‘mostly fair’ trial. I want a fair trial. He is entitled to a fair trial,” Ermine said of Avsenew.

The prosecution claimed that there is not enough sufficient evidence of misconduct in the first phase of the trial to overturn the guilty verdict from the juror. Avsenew and the attorneys are set to return to the courtroom on December 7^th, 2022.

Juror Misconduct

Juror misconduct is defined as a violation of a court’s law or charge by a person who serves as a jury member. Juror misconduct can take place during the trial, or afterwards during deliberations.

Once chosen as a member of the jury, jurors are prohibited from any conduct that could potentially interfere with making sure the trial is fair and impartial. If there is any expected misconduct from a jury member, the court is expected to respond and exercise its discretion for the appropriate remedy.

The following is a list of the most common examples of juror misconduct:

• Absence
• Inattentive or Sleeping
• Reading/watching media related to the trial
• Consulting dictionary or internet for legal terms
• Expression of opinion on an issue
• Refusal to deliberate with the law
• Conducting experiments relating to trial
• Unauthorized crime scene visits
• Intoxication
• Improper contact with other jurors

If a court suspects there has been juror misconduct, the following is a list of possible actions to take as an outcome: 

• Giving the jury members cautionary instructions
• Replacing a jury member with an alternate
• Declaring a mistrial
• Contempt proceedings
• Criminal charges

Grounds for a New Trial in Florida

Under Florida’s Rules of Criminal Procedure, there are specific steps that must be taken in order to establish grounds for a new trial in a criminal case. Rule 3.600 explains that the court can grant a new trial if the following grounds are established:

• The jurors decided the verdict by lot;
• The verdict is contrary to the evidence or law; or
• New material evidence, which, if introduced at the trial could have challenged or changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.

In addition, the court shall grant a new trial if any of the following grounds is established, which provides substantial rights of the defendant were prejudiced thereby:

1. The defendant was not present at any proceeding at which the defendant’s presence is required;
2. The jury received any evidence out of court, other than that resulting from an authorized view of the premises;
3. The jurors, after retiring to deliberate upon the verdict, separated without leave of court;
4. Any juror was guilty of misconduct;
5. The prosecuting attorney was guilty of misconduct;
6. The court erred in the decision of any matter of law arising during the course of the trial;
7. The court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant;
8. For any other cause not due to the defendant’s own fault, the defendant did not receive a fair and impartial trial.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have been accused of violating Florida law, it is in your best interest to seek out a skilled defense attorney. Getting accused of a crime is extremely stressful. Figuring out how to navigate the legal world is also incredibly difficult on your own. That’s why we advise speaking with an experienced defense attorney in Tallahassee, FL to help build a strong defense for your case.

Don Pumphrey and his team at Pumphrey Law Firm have experience representing clients across the state of Florida. We understand the importance of having someone on your side, and we vow to stand in your corner to fight for your future. Contact us today for a free consultation at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

Article updated on November 25, 2022

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