Russell v. State

URBIGKIT, Justice, Retired,

specially concurring and dissenting.

I concur in the decision of this court to remand the case for failure of the trial court “to follow the appropriate procedure with respect to a determination as to immunity * * *.” However, I would require reassignment of the case to a fair and disinterested trial judge for the reasons stated in my concurring opinion in Hall v. State, 851 P.2d 1262 (Wyo.1993).

Even though the conviction will be reversed and a new trial may be required, I cannot, under any circumstances, accept the justification provided by this court for retention of the husband of a witness on the jury. Particularly in light of the prosecution effort directed toward this and other cases related to Mark Hopkinson, Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983), attention to the principle of basic fairness is required.

I am distressed with the unwillingness of the Wyoming Supreme Court to require a fair and impartial jury as guaranteed by Wyo. Const. art. 1, § 6; Wyo. Const. art. 1, § 9; and the Sixth Amendment of the United States Constitution as well as the Fourteenth Amendment of the United States Constitution. Acceptance of the obviously partisan and far from disinterested jury in Amin v. State, 811 P.2d 255 (Wyo.1991) was constitutionally implausible. We now move on to a status which defines the ultimate egregious error. In this circumstance, defense counsel and the accused might equally, or preferably, be served by having a member of the staff of the prosecutor sit on the criminal trial jury.

“ ‘The securing and preservation of an impartial jury goes to the very essence of a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, reh. den., 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965). It has long been recognized under the federal constitution that a defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself. Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907) (Holmes, J.).’ ”

Amin, 811 P.2d at 272, Urbigkit, C.J., dissenting (quoting State v. Marshall, 123 N.J. 1, 586 A.2d 85, 127 (1991) and State v. Williams, 93 N.J. 39, 60-61, 459 A.2d 641 (1983)).

I fear, with this decision, that the court leaves no limits to the degree of partisanship that is acceptable for an individual to be retained as a member of a Wyoming criminal trial jury.