WASHINGTON — A federal judge warned jurors in a death penalty trial 41 times not to discuss the case with anyone, not even each other, until they were sent off to deliberate on a verdict.
That didn't stop Cynthia Wilson, the jury foreman, from calling five news organizations and placing 71 other telephone calls to two fellow jurors.
U.S. District Judge Joseph F. Anderson Jr. of South Carolina found Wilson's behavior so outrageous he held her in contempt of court, ordering her to return $2,500 of her juror's pay and perform 120 hours of community service. He said he would have put Wilson in jail for six months if she did not have four children at home.
But when the defendant in the case, Brandon Basham, asked for his death sentence to be thrown out as a result of Wilson's conduct, Anderson refused and the 4th U.S. Circuit Court of Appeals in Richmond, Va., backed him up.
And when Basham took his plea to the Supreme Court, Solicitor General Elena Kagan agreed the judge had made the correct call. The high court, to which Kagan has since been nominated, could say as early as Tuesday whether it will hear Basham's case.
It is no surprise the government is seeking to preserve what it already has won, especially after the time and expense of a capital punishment trial.
Basham's guilt in a brutal, senseless crime is not in dispute, as even his lawyers concede. Basham was convicted by a jury, and Chadrick Fulks pleaded guilty to kidnapping and killing 44-year-old Alice Donovan during a two-week crime spree after the pair escaped from a Hopkins County, Ky., jail in 2002.
They also have pleaded guilty to killing Marshall University student Samantha Burns, 19, in West Virginia.
The claim Basham is raising at the Supreme Court deals only with the actions of juror Wilson, a nurse from Lyman, S.C., in the penalty phase of his trial.
The court has previously ruled the presence of a biased juror is so serious it requires a verdict to be thrown out.
Basham and the government disagree over whether Wilson actually was biased and tried improperly to sway other jurors.
Wilson testified her calls to the media were intended to spur stories that women shopping alone should be careful, since Donovan was abducted from a Wal-Mart parking lot and Burns from a mall in Huntington, W.Va.
But Basham said the testimony from Wilson, her husband and a television news producer Wilson called suggested she was interested in publicity for herself and was also worried some jurors might not vote for a death sentence.