Judge refuses mistrial after she converses with jury

Sam Skolnik

Wednesday, March 14, 2007 | 7:18 a.m.

A conversation between a District Court judge and a deliberating jury, away from the presence of the attorneys in the case, caused a motion for a mistrial Monday that was refused by the judge.

Nevada law specifically warns judges in criminal trials that they may not communicate with the jury unless the attorneys are present or have been given notice.

But neither lawyer was present when District Judge Elizabeth Halverson engaged the jury, and according to both the prosecutor and the defender, neither was asked to return to court to be there for the conversation.

The incident caused Presiding Criminal Division Judge Stewart Bell to speak to Halverson at a social function Monday evening to tell her that should she have questions about appropriate judicial behavior, she should speak with him first.

The communication in question took place in the case of Nevada vs. Vada McDaniel, a man who had been charged with 23 felony counts of lewdness with a child under 14 and sexual assault.

According to a videotape of the Monday afternoon proceedings, Halverson engaged in a wide-ranging, 15-minute chat with jurors in which she joked with them and answered questions about criminal process and procedure.

She also gave them her beliefs regarding what happens when a jury becomes deadlocked.

Her conversation with the jurors, which took place Friday afternoon, more than 10 hours after the jury had been deliberating, was shown to the lawyers Monday in court.

"If you don't have a verdict, if you can't reach a verdict, then you can say, 'We can't reach a verdict,' " Halverson told the jurors. "Nobody's required to do anything against their conscience. After listening to all the evidence and hearing all the instructions of law, if you can't, you can't. If you can, you can."

Halverson continued: "We're not here to tell you that you have to believe a certain way or not believe a certain way, or that you have to give up any view about what you've heard."

When asked what the attorneys thought, Chief Deputy District Attorney Elissa Luzaich of the prosecutors' special victims unit told Halverson that under state law, "in the big scheme of things, it's very clear that the court can't have any contact whatsoever with the jury, without notifying the parties, having the parties present."

In fact, state law says that after a jury is brought into court after they have started to deliberate, "the information required shall be given in the presence of, or after notice to, the district attorney and the defendant or his counsel."

Halverson said in court that she was under the impression that the lawyers had waived their right to come back into court Friday afternoon - even though the attorneys denied ever being contacted.

After Halverson played the tape of her chat with the jury, McDaniel's defense lawyer, Deputy Public Defender Jeff Maningo, urged that Halverson declare a mistrial.

"We just don't know," Maningo said, "what kind of impact there would be on a juror after having any kind of conversation with someone from the court, and whether or not that would sway them one way or the other."

Luzaich fought the mistrial motions, saying that she didn't believe the conversation rose to that level. Prosecutors often fight mistrial motions, because sometimes, if granted, it can prevent them from ever bringing the same charges against the defendant again.

Halverson denied the mistrial motion. The jury then came back and delivered 13 "no verdict" decisions, meaning they were deadlocked, and 10 not guilty verdicts.

According to Lynne Henderson, a professor at UNLV's Boyd School of Law, the jury room, and juror deliberations generally, are "sacrosanct."

There are strict ways in which judges can communicate with a deliberating jury, and in which they can ask juries to break a deadlock, Henderson said - time-tested ways to avoid any appearance of favor or bias.

"Juries can be too deferential to a judge and (her) opinion," said Henderson.

Bell, after hearing about the incident, said he thought it was appropriate that he and Halverson "had a communication" regarding his availability to talk if ever judgment questions should arise. Halverson was elected in November and took the bench in January.

"As a system, we want to do the job right all the time," Bell said, to ensure fairness for victims and defendants alike.

"To her credit, she seemed receptive" to their discussion, Bell said, noting that Halverson is not the only judge over the years that he has advised regarding judicial procedure.

Halverson couldn't be reached for comment late Tuesday afternoon.