Juror Kathleen Byrnes gives powerful testimony on juror misconduct during trials, convictions of Darrell Ewing, Derrico Searcy
Byrnes says introduction of banned research changed her vote to “Guilty,” at evidentiary hearing Aug. 26, 2019
“I remember this trial so well because it haunted me. I just kept wondering if I had done something terribly wrong.”—Byrnes
“What really matters is whether ONE juror, Kathleen Byrnes, was inappropriately influenced”—Judge M. Hathaway, who can order new trial
State AG has petitioned Judge Hood for hearing deadline to be extended past Aug. 28, if petition granted, hearing to be continued until Fri. Sept. 6 at 1:30 pm
Ewing’s mother: Judge’s order demands release after Aug. 28, she and other supporters want release outright, or pending new trial
By Diane Bukowski
Aug. 27, 2019
DETROIT – The juror in the 2011 murder trials of Darrell Ewing and Derrico Searcy who exposed the introduction of banned “extraneous material” from Facebook and the internet into jury deliberations gave powerful testimony Aug. 26 backing up her claim.
Former juror Kathleen Byrnes said firmly during an evidentiary hearing in front of retired Wayne County Circuit Court Judge Michael Hathaway that the material caused her to change her original “not guilty” verdict. She testified in a courtroom packed with family members and supporters of the two co-defendants.
The hearing was held at the order of U.S. District Court Judge Denise Page Hood, after the Sixth Circuit Court affirmed her earlier order vacating the conviction, in part, and remanded the case to her for further action. Hood originally cited an affidavit written by by Byrnes regarding the jury misconduct as one cause for her order. See http://voiceofdetroit.net/wp-content/uploads/Byrnes-affidavit.compressed-4.pdf.
See Judge Hood’s original order at http://voiceofdetroit.net/wp-content/uploads/Darrell-Ewing-habeas-corpus-grant.pdf/.
Her order on remand is at http://voiceofdetroit.net/wp-content/uploads/EWING-v-WOODS-on-remand-to-Denise-Fort-hood.pdf.
Hood said in part: “On January 10, 2011, Juror # 4, Kathleen Frances Byrnes, filed an affidavit informing the court that during deliberations Juror # 13 (Michelle Chesny) brought in Facebook information regarding petitioner’s past history and information pertaining to an online eulogy for J.B. Watson. Ms. Byrnes also informed the court that Juror # 5 (Karen James) had googled gang information and brought up information pertaining to gang codes and gang activity that she found on the internet. This Court notes that the jurors brought into jury deliberations the same type of information that the trial court excluded prior to petitioner’s trial.”
At the end of her testimony, Byrnes, who had been previously been extremely composed and dignified during lengthy and detailed examinations, broke down, shaking and in tears.
“I remember this trial so well because it haunted me,” Byrnes said. “I just kept wondering if I had done something terribly wrong.”
Byrnes testified she was the lone hold-out for a “not guilty” verdict until another juror, identified by trial counsel as Karen James, discussed her internet research on “pecking order” in gangs at length.
She said James told her that another man who admitted to the allegedly gang-related killing of J.B. Watson on Dec. 29, 2009, Tyree Washington, was at the bottom of the “Hustle Boys” gang pecking order and took the fall for Ewing, who was allegedly at the top.
Washington later wrote an affidavit confessing to the crime which he sent to the prosecutor during the Ewing/Searcy trial. He said the “Hustle Boys” was not a gang and his motive for killing J.B. Watson was that Watson had earlier shot at him and his child and the child’s mother while they were driving. Adrienne Jackson, who was driving the car at the time, submitted an affidavit affirming his confession, but saying she had no idea what he was planning to do.
“Prior to this juror bringing in this information, I was the only hold-out because I felt that reasonable doubt existed because another person had confessed,” Byrnes said. She said emphatically that the “pecking order” information changed her verdict. Byrnes said she had asked earlier why anyone would confess to a crime they didn’t commit.
Trial judge the late Carole Youngblood had instructed the jury not to consider anything other than evidence presented at the trial, specifically including information from internet research. She earlier denied the prosecution’s motion to bring in a “Facebook expert” to testify, during a pre-trial hearing.
The jury brought back a unanimous “guilty” verdict after Byrnes changed her vote, only one day after they sent a note to Judge Youngblood asking if they could declare a “hung jury” because they were hopelessly deadlocked. Byrnes said the discussion on gang “pecking orders” took place after the deadlock note was sent.
Youngblood told the jury to continue deliberating, without giving standard “deadlock” instructions which emphasize no juror should change their honestly-held verdict as a result of pressure from the others.
Assistant Prosecutor Jon Wojtala argued that a witness who testified about Tyree Washington’s confession already said at trial that Washington was a “flunky” for Ewing. Byrnes and two other jurors testified that they recalled information about Ewing’s gang membership only from the prosecutor’s opening statement, not from witness testimony.
A second juror, Michelle Chesny, testified that she looked up Ewing’s Facebook page despite the late Judge Youngblood’s instructions, and brought the results of her research into the jury deliberations. She claimed the material did not affect anyone’s verdict, but repeatedly said she could “not recall” much of anything else. She said she thought it would be “OK” to look up the Facebook information.
Chesny appeared resentful at having to testify.
“I don’t mean to shortcut this hearing, but you can call all other 11 jurors and have them say it didn’t matter, but what really matters is whether ONE juror, Kathleen Byrnes, was inappropriately influenced,” Judge Hathaway told AP Wojtala After Chesny’s testimony.
“It is irrefutable that she had some doubts that were reasonable, based on the ID evidence and the confession of Mr. Washington, and that she was worn down by other jurors bringing extraneous information into the jury process,” Hathaway concluded. “Even the last witness admitted she went on Facebook. I have an order from Judge Denise Page Hood that I have to follow. I have to conduct a responsible hearing.”
Hathaway added that Byrnes clearly had maintained her doubts for nearly 10 years.
In her order on remand, Judge Hood said, “The petition for a writ of habeas corpus is again granted on petitioner’s second claim involving the use of extraneous influence. The grant is conditioned upon the state trial court conducting an evidentiary hearing on petitioner’s juror misconduct claim within 120 days of this Court’s order and making a determination as to whether the extraneous information had a prejudicial effect upon the jury’s verdict. If the judge so finds, he or she shall order a new trial for petitioner. Ewing v. Horton, 914 F.3d at 1031-34.”
A third juror, Joyce Hall (sp?) who now works in the office of the Wayne County Prosecutor, also testified. She said she did recall other jurors doing internet research regarding the pecking order of gangs and gang codes, but that she herself did not do so because she had no access to the internet and because the judge ordered the jurors not to do so. She also recalled another juror looking up Ewing’s Facebook page.
“I remember her saying something about him and his girlfriend making hand signs in a photo,” she said. She said she assumed the “hand signs” were meant to be gang-related.
Defense attorney Phillip Comorski told VOD that Michigan Atty. General Dana Nessel’s office petitioned for an extension of Hood’s order past Aug. 28 if the hearing was not completed by then. .
“We are hoping my son is released as ordered originally by Judge Hood,” Ewing’s mother Lasonya Dodson told VOD. “And if there is a new trial ordered, we want my son home pending the date of the new trial.”
Defense Private Investigator Scott Lewis told VOD that in past innocence cases, the prosecutor’s office has waited months after a judge orders a new trial, before finally declaring that they cannot hold one for various reasons and finally allowing the defendant’s final release.
In the event that the Aug. 28 order is lifted, Judge Hathaway said he would continue continue the hearing until Friday, Sept. 6 at 1:3o pm because Wojtala said he had two other witnesses. They are the jury foreman and an investigator for the prosecution. Wojtala said the investigator delivered a subpoena to Byrnes and discussed the case with her. Byrnes said that the investigator was a friend of her husband’s family and that she thought they were just “having a conversation,” that lasted only a short while.
Byrnes also cited numerous other irregularities she said took place during jury deliberations, including:
- An alleged statement by the jury foreman that the jury HAD to bring back a verdict, despite any anyone’s doubts, after Judge Youngblood’s response to the deadlock note.
- Other jurors’ statements that they also had seen the photos from Ewing’s Facebook page (Juror Chesny did not bring the actual photos into the deliberations.)
- “Once we got into the jury room, it became free to say whatever we wanted to say among the jurors.”—Byrnes.
- The jury as a whole felt that since the two defendants were being tried together, if Ewing was guilty, so was Searcy. The jury spent little time deliberating on Searcy’s guilt.
- Jurors threatening her that if Ewing and Searcy were released, and the jurors’ children were killed as a result, that she would be responsible.
- Jurors did their own research about witness’s testimony that he observed Ewing and Searcy commit the murder from his rear-view mirror, checking what they could see from their rear-view mirrors.
Ewing and Searcy earlier appealed their guilty verdicts on three grounds. They included Judge Youngblood’s failure to give the proper “deadlocked jury” instruction, the extraneous information in jury deliberations, and Tyree Washington’s confession to the killings after trial in an affidavit, as newly discovered evidence. They lost their cases in state Courts and moved on to a habeas corpus appeal in federal courts.
Above is confession by Tyree Washington, taken by P.I. Scott Lewis.
Washington’s confession, above, is to the killing of J.B. Watson after Watson threatened the lives of his girl friend and child, and does not appear to have been “gang-related.”
U.S. District Court Judge Hood, who heard the habeas appeal. vacated the conviction on the second ground only. She noted there had been testimony at trial regarding Washington’s confession, although Washington himself did not appear.
On appeal, the Sixth Circuit Court remanded the case to Hood, who originally ordered a new trial outright. The Sixth Circuit, with one dissenting vote in favor of a new trial, said “The appropriate remedy in such a case, however, is generally to order release unless the State provides—instead of a new trial—a hearing to consider whether a new trial is warranted. Such an order should have been entered by the district court in this case.”
Editor: Author Gary Younge recently published a reflection on the causes of alleged gang-related violence among youth, appropriate here because the jury in this case clearly had pre-conceived notions and biases about Black gangs in particular. Read it at:
Ex-offenders I have talked with have said that at the time they went to prison, in the mid-’70’s, there were no such things as gangs in Detroit, that they were basically loose affiliations of young people who admittedly stole cars and committed other street crimes.
One juvenile lifer whose case I followed for years in the Michigan Citizen was arrested by Detroit Police Officer James Younger in 1975. Younger later became head of the Detroit Police Gang Squad, disbanded in 2013 due to allegations of corruption and brutality. Younger claimed this teen was a gang leader, a claim discounted by his peers.
See neighborhood comments supporting the disbanding of the Gang Squad at http://voiceofdetroit.net/wp-content/uploads/Neighborhood-comments-from-2016-blog-on-Detroit-gangs-after-Detroit-Gang-Squad-disbaded.pdf/
Juvenile lifer Charles Lewis, whose case VOD has been following for three and one-half years, was similarly portrayed as a leader of a gang at the time of his arrest in 1976. However, he and his family discount that claim, again saying the alleged gang was a loose affiliation of Black youth in a mostly-white neighborhood rapidly changing due to white flight, stoked by racist real estate “block-busters.
Racist Judges like Thomas Poindexter, who headed the Greater Detroit Homeowners Council, aimed at keeping Blacks out of white neighborhoods also stoked the flames of racisl hate. Lewis’ court-appointed defense attorney Arther Arduin earlier was Poindexter’s campaign manager. Lewis was sentenced to LWOP by another known racist judge Joseph Maher, who unsuccessfully attempted to take famed militant attorney Kenneth Cockrel, Sr.s’ law license for telling the media that Maher was a racist in community dialect terms.
Lewis is currently awaiting a “mitigation hearing” October 11. Assistant Prosecutor Thomas Dawson stressed his alleged gang roots in a brief calling for him to be re-sentenced to life without parole.
The history of the Black Panthers and their political education of so-called “gang members” among Black youth is well-known. Former Black Panthers including Jamil El-Amin (H. Rap Brown) formed a national organization, The International Council for Urban Peace, Justice and Empowerment, aimed at continuing this tradition. For this reason, El-Amin was falsely imprisoned for life, and another member of that organization, Detroit’s Imam Luqman Abdullah, was assassinated by the Department of Justice along with Detroit and Dearborn police in 2009.
See the Council’s press release on these events at http://voiceofdetroit.net/2010/10/30/1951/.
Powerful video above condemns mass incarceration of Black youth by units like Detroit’s gang squad. Current Detroit police chief James Craig has recently announced that he plans to reconstitute the gang squad and also called for the introduction of murderous tasers into the DPD arsenal.
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