Black man can pursue appeal of gun conviction on grounds he was convicted by a racist jury, court rules

The Supreme Judicial Court ruled today that an attorney for Khamal McCalop of Dorchester can pursue an investigation into whether some of the jurors who convicted him on three gun charges screamed racist remarks about him while pressuring one holdout on the jury to convict.

The state's highest court also tossed a plea deal McAlop agreed to on the second part of his trial - whether he deserved extra time in prison because of his past record - ruling the judge in the case was wrong in forcefully denying his lawyer's request to question jurors after the lawyer learned of the alleged racism in the jury room.

In a decision he wrote just before his recent death, Chief Justice Ralph Gants said that while lawyers are normally barred from talking to jurors after a trial about their deliberations, racial bias is an exception. Gants had made racial inequity a focus of the court.

We conclude that the judge's error in not promptly allowing the motion for jurors' names and contact information, and in disparaging its merits, compounded by the judge's inducement of the defendant to waive his right ever to raise the issue of racial bias among the jurors, so tainted the guilty plea that it cannot stand. A guilty verdict arising from racial or ethnic bias not only poses a substantial risk of a miscarriage of justice but also, "if left unaddressed, would risk systemic injury to the administration of justice." Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 868(2017). Therefore, where a defendant makes a good faith claim that a deliberating juror reported that racial bias infected the jury's deliberations, a judge may not condition acceptance of a guilty plea to a sentencing enhancement upon a waiver of that claim.

According to the court's summary of the case and a Boston Police account, McCalop was arrested on Harvard Street Dorchester after a car chase that started two miles away at Dewey Street and Blue Hill Avenue in Roxbury and which ended with him jumping out of his moving car just before it crashed and then leading police on a foot chase, on May 13, 2015.

McAlop, already officially labeled as an armed career criminal for a past conviction, was convicted of negligent operation by a Suffolk Superior Court jury that deadlocked on the gun charges, including illegal possession of a loaded firearm. At a second trial, a new jury convicted him on those charges, which meant he was looking at up to 15 years in prison in a followup jury trial to determine whether his status as an armed career criminal warranted extra time behind bars.

McCalop and his attorney, Christopher Malcolm, had earlier agreed to a deal with then DA Dan Conley's prosecutors for a four-year sentence if he agreed to plead guilty to being an armed career criminal. But then Malcolm said that after the initial verdict was read on Feb. 5, 2017, he was approached outside the courtroom by a juror - in tears - and an alternate juror outside the courtroom, who he says told him how the jury had come to a guilty finding:

The deliberating juror stated that the deliberations began with an even six-to-six split, but the jurors slowly changed their votes to guilty due to comments made by other jurors, until she was the last person at the end of the day "holding on" to a not guilty vote. When she told her fellow jurors that she wished to return the next day to continue deliberations, they started yelling at her and "forced her" to change her vote to guilty. She also told defense counsel that she was surprised to see the amount of racism expressed and vocalized during the deliberations by several of the jurors who were voting to find the defendant guilty, and that she believed racism changed some of the jurors' votes to guilty.

Neither the SJC decision, nor McCalop's appeal, by a different lawyer, specifies the racist comments.

Malcolm then filed a motion with the judge in the case, Linda Giles, to obtain the names and contact information for the jurors, so that he could question them on the issue and possibly file an appeal of the underlying conviction on charges of illegal possession of a firearm, illegal possession of ammunition and illegal possession of a loaded firearm.

Giles not only denied the request, saying lawyers are not allowed to question jurors about their deliberative process, but told Malcolm, "Good going . ... You just upset this applecart," which led both him and Malcolm to believe she was threatening them - the attorney with a possible bar complaint, McCalop with a possible long sentence - so they agreed to withdraw the request and go along with the original deal offered by the Suffolk County District Attorney''s office. The DA's office had threatened to withdraw its deal if Malcolm pursued his appeal.

In response to the SJC appeal, current DA Rachael Rollins's office said it side with Giles, that McCalop got a fair trial, that the deal it had offered with good and that Giles was only looking out for McAlop's best interests, because the 4 years prosecutors proposed would be better than the 15 years McCalop would face given his record.

The SJC justices said they agreed with the DA that the judge was acting in what she thought was McCalop's best interests. And they agreed that defense attorneys should be allowed to question jurors after the fact about their deliberations only in the most limited and extraordinary circumstances.

But jurors who might have been screaming racist remarks at one particular juror in deliberations over a Black man's fate certainly qualify as a reason for a potential appeal, they said.

They also disagreed that Malcolm had violated a rule about contacting jurors after a trial without permission - the court said Malcolm did not reach out to the jurors, he simply stood there and listened after the two jurors approached him.

Despite siding with the judge on the juror issue, Rollins's office did agree with McCalop's current attorney that the conviction for illegal possession of a loaded firearm should be dropped, because the prosecutor in the case failed to prove that McAlop knew the gun police found after they arrested him was loaded, and such knowledge is a requirement for conviction on that charge.

The SJC agreed to order a Superior Court judge to enter a verdict of "not guilty" for that charge. It also vacated McCalop's sentences and sent the remaining two convictions back to Superior Court for a new trial on just what sort of sentence he should get.

And it ordered that should McCalop's current attorney ask for the names and contact information for the jurors so that she can question them about the alleged racial remarks and, should she choose, appeal her client's underlying gun convictions because of them.

Briefs by McCalop's attorney and the Suffolk County DA's office.