Willie Clark could get a new trial in the 2007 murder of Denver Broncos cornerback Darrent Williams.
The Colorado Court of Appeals has ordered a hearing to determine if juror misconduct tainted Clark's first trial in 2010. One of the jurors admitted that he and some of the others conducted an experiment outside the courtroom, seemingly to determine if a witness was telling the truth. "If misconduct occurred and there is a reasonable possibility that defendant was prejudiced by it," the appellate judges wrote, "the court shall order a new trial."
Clark was convicted of murdering Williams and attempting to murder sixteen other people in the early hours of New Year's Day 2007. Prosecutors said he fired shots out the window of a white Chevy Tahoe into a stretch Hummer limo carrying Williams and his friends. Williams was hit in the neck and died soon afterward.
The shooting was motivated, prosecutors said, by an altercation that happened earlier that night at a Golden Triangle nightclub, where several Broncos players were celebrating New Year's Eve. Clark and his friend Daniel Harris were also at the club, and they became upset when someone in the Broncos' entourage shook up a bottle of champagne and popped the cork. Clark and Harris got sprayed, and Harris confronted the Broncos players and their friends, shouting "Eastside" and "Tre Tre Crips."
A similar altercation happened outside in the street after the club closed. The prosecution's theory was that Clark and Harris were gang members, and that Clark shot into the limo in retaliation for being disrespected. Evidence showed that the Hummer had been sprayed with bullets from two different guns — a .40 caliber pistol and a .45 caliber pistol. Harris testified that he was in the backseat of the Tahoe and that Clark was driving. He said he saw Clark lean over the center console and fire shots out the passenger-side window. Harris testified that he didn't know who, if anyone, was the second shooter.
A jury convicted Clark in March 2010. He was sentenced to life in prison for Williams's murder, plus 1,152 years for the attempted murders. Harris got a deal for testifying against Clark.
Clark appealed his conviction on several grounds, including that prosecutors knew Harris was lying. Clark's attorney, Eric Samler, also argued that testimony given by a gang expert painted Clark as a violent thug and prejudiced the jury against him. Clark's trial was also full of juror misconduct, Samler argued, including the experiment.
After closing arguments but before the jury began deliberating on whether Clark was guilty, the six alternate jurors were dismissed. (Alternates do not know they are alternates until the end of the trial.) One of them, a nineteen-year-old male identified in court documents only as Juror #34, spoke with an investigator for Clark's legal team named Greta Lindecrantz. She wrote an affidavit summarizing their conversation.
Juror #34 told Lindecrantz that he'd become friends with two other jurors, #5 and #371. Juror #5 lived at the Parkway Apartments on Speer Boulevard, which is the same building where one of the witnesses lived. That witness testified that on the night of the shooting, he was standing on his balcony and saw a green or brown SUV speeding northbound on Speer after hearing what he thought were firecrackers.
That's important because prosecutors maintained that Clark was driving a white SUV on Speer when he shot into the limo.
Juror #34 told Lindecrantz that he and Juror #371 went to Juror #5's apartment at night and watched cars go by to see if they could tell what color they were. According to her affidavit, he said they could definitely tell "white" and "not white."
Juror #34 also said the three of them often walked to lunch together during the trial. On their walks, he said they would recap what witnesses had said in court that day and vote on whether they thought Clark was guilty.
Juror #371 was also dismissed as an alternate, but Juror #5 was not. The day after Juror #34 was dismissed, he went back to the courthouse to return his juror badge. While there, he told Lindecrantz that he texted Juror #5 to ask what was going on. "They went to the deliberating juror's home from court and stayed at that apartment for a couple of hours," Lindecrantz wrote in her affidavit. Juror #34 "was told that the jurors thought Willie was guilty," she wrote, and he advised Juror #5 "to stick with what he believed and to hang the jury if that was what it meant."
Soon after Clark was convicted, his defense attorneys filed a motion for a new trial based on the alleged juror misconduct. Jurors are not allowed to consider "extraneous" information that's not presented in court — and they argued that's what the Speer Boulevard experiment was. In addition, they pointed out that jurors are not permitted to "pre-deliberate" during the trial, nor are they supposed to discuss their actual deliberations with non-jurors, including alternates who have been dismissed. But their motion for a new trial was denied.
Andrew J. Nilsen
The appeals court also stopped short of granting Clark a new trial. But the appellate judges did decide "that a hearing is required."
In an opinion published on April 23 (and on view below), the appellate judges implied that the allegations of pre-deliberation were less serious than those involving the experiment.
"We agree that cases requiring inquiry into the possibility of premature juror deliberations, discovered post-verdict, are extremely rare," the judges wrote. "Because, however, this case involves a situation in which the jury may have both been exposed to extraneous information and prematurely decided the issue of defendant's guilt, we conclude that this case is one that does require such inquiry."
The hearing, which would take place in Denver District Court, should seek to determine "whether misconduct actually occurred, whether information obtained by the jurors participating in the misconduct was disseminated to other jurors, and if so, whether that information reached the jury before it came to a unanimous verdict," the judges wrote. If a district court judge decides that the jury did indeed consider "improper information," he or she must then decide whether Clark was prejudiced by that information. If so, Clark could get a new trial.
The appellate judges rejected all of the other arguments made by Clark's attorney, including that the expert testimony on gangs was improper. Samler says that while he's pleased that Clark will be granted a hearing on the possible juror misconduct, he's disappointed that the appeals court dismissed his other claims.
"I feel that the Court of Appeals drank the Kool-Aid, so to speak, in terms of making this case into what it’s not," he says. "It had nothing to do with gangs. It had to do with an incident at the club and all of a sudden, it became this case about the evils of gangs. It became the good guys, the Denver Broncos, against the bad guys, the Crips. People were able to play that card and to run with it, when it should have been about who did what."
Samler says he plans to ask the Colorado Supreme Court to review the appeals court's rulings on everything except the alleged juror misconduct. Given that the decision could come under review, he said it will likely be several months before an evidentiary hearing on the juror issues is held.
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Clark is currently in prison out-of-state. He was transferred out of Colorado in 2013, after spending his entire time behind bars here in solitary confinement — a condition he says wasn't warranted. "I understand that I'm Colorado's most hated person," Clark wrote to Westword in 2013. "But I'm still human and what I'm being forced to endure is not right."
Read the entire Court of Appeals ruling below.