photo by: Ashley Hocking

Defense attorney Jennifer Chaffee, right, listens during a preliminary hearing, Jan. 19, 2018, alongside defendant Anthony L. Roberts Jr., left, who is charged with murder in an October 2017 triple homicide on Massachusetts Street.

Four days into the jury selection process, a Douglas County District Court judge abruptly declared a mistrial in the highly anticipated downtown Lawrence triple murder case.

Roughly 100 or more remaining potential jurors were thanked for their service and sent home, with no explanation except that a “legal issue” had arisen.

The Journal-World has obtained a transcript of the judge’s behind-the-scenes conversation with prosecutors and defense attorneys, revealing the issue that derailed last week’s trial.

Antagonism, misstatements and perceived disrespect by the lead defendant’s attorney “tainted” the entire jury panel to the degree that neither her client nor his two co-defendants could get a fair trial, Judge Sally Pokorny found.

Defense attorney Jennifer Chaffee was corrected by the judge after telling prospective jurors that her client was charged with more counts of murder than he actually is, and that he was facing a drastically longer sentence than he actually would be if convicted, according to a transcript of the questioning preceding the judge’s finding.

Question topics included race in the criminal justice system, concealed carry, self-defense and underdeveloped brains of young men — not unusual. But the transcript shows that at times Chaffee argued with jurors and continued with statements or questions after being told by the judge they were improper.

The trial involved three defendants, each with his own attorney. Jurors were responding fine through the first days of questioning by District Attorney Charles Branson and several hours of questioning by appointed defense attorney Michael Clarke, Pokorny noted.

But not long into Chaffee’s turn at questioning them, jurors turned, according to Pokorny and all the other lawyers in the room.

One juror, “shaking” with anger, approached the bailiff and said she didn’t think she could go on with the process. Appointed defense attorney J.C. Gilroy described seeing negative “body language, facial expressions, sometimes rolling of the eyes or shaking of heads” in response to Chaffee’s questions.

In the transcripts, and in a response to the Journal-World this week, Chaffee denied that her approach tainted the jury.

Pokorny disagreed.

“You seem oblivious to the damage you are doing to your client with this questioning of the jury,” Pokorny said, in the transcript.

“I have been involved in jury trials for 40 years, and I have never seen a juror get angry when describing their positions to an attorney. I have seen many lively discussions during voir dire, but not this level of being angry, upset that is emanating from that jury pool.”

Pokorny said she believed jurors perceived Chaffee as going beyond zealously representing her client, instead “overstepping the bounds” of her obligation to him, disrespecting the court’s admonitions and disrespecting the process. Pokorny said that while just one juror came forward to the bailiff there were likely others that were not as brave.

Pokorny suggested that Chaffee privately talk to her client about whether he was still comfortable proceeding with her as his attorney.

•••

Chaffee, based in Topeka, represents Topeka resident Anthony L. Roberts Jr., 21. He is charged with three counts of murder and one count of attempted murder in the Oct. 1, 2017, shootings on Massachusetts Street.

Killed were Leah Elizabeth Brown, 22, of Shawnee; Colwin Lynn Henderson III, 20, of Topeka; and Tre’Mel Dupree Dean-Rayton, 24, of Topeka. Two more Topeka men were shot but survived.

Two Topeka friends of Roberts’ are charged with lesser crimes in connection with the same incident, which started with a fistfight on the street corner and erupted into gunfire. Ahmad M. Rayton, 23, is represented by Clarke. Dominique J. McMillon, 20, is represented by Gilroy.

photo by: Nick Krug

From left, defendants Anthony L. Roberts Jr., Ahmad M. Rayton and Dominique J. McMillon sit during a joint preliminary hearing, Thursday, Jan. 11, 2018, for charges related to a October 2017 triple homicide on Massachusetts Street.

Clarke and Gilroy opened the conversation in the judge’s chambers, asking Pokorny to allow their clients to drop out of the trial, or to declare a mistrial altogether.

Clarke and Gilroy said the jury pool was becoming alienated and that jurors’ negative perception of Chaffee would be unfair to their clients being tried alongside hers.

Branson instead asked the judge to discharge the current jury panel. He challenged Chaffee’s “competency” to try the case at hand and said he feared an appeal because of ineffective counsel.

Branson specifically pointed out Chaffee’s misstatement to potential jurors that Roberts was facing six counts of first-degree murder, when in fact he’s charged with just two counts of first-degree murder.

“I believe the statements and conduct of counsel demonstrates a degree of incapability to try a case of this magnitude, and I think going forward at this point in time invites error that will be reversible,” Branson said.

Chaffee told the judge that her style of voir dire, or questioning of jurors, is different from most. She said it was aimed at identifying people who are improper for the jury.

“I do think sometimes the manner I do it alienates people and makes sure I know who does have harsh feelings. However, my intention with it is to earn the trust of the panel,” Chaffee said.

Chaffee said she was not trying to cause a mistrial or show disrespect.

“Everybody who knows me knows that I have more respect for the Constitution than I have for about anything else that exists,” Chaffee said.

•••

The Journal-World spoke with Chaffee Thursday. She initially declined to comment for this story but later sent a written statement.

“I’m sorry that my methodology was not well received by the Court, however I will advocate for my client using my skills and judgment,” she said. “I addressed the jury pool for a short time after approximately 24 hours of voir dire. The mistrial cannot be attributed to me. I am ready to retry the case.”

Branson, through his assistant, declined to comment or answer further questions.

photo by: Nick Krug

Douglas County District Attorney Charles Branson, left, confers with Chief Assistant District Attorney David Melton during a preliminary hearing, Thursday, Jan. 11, 2018, for three men charged in connection with an October 2017 triple homicide on Massachusetts Street.

All three defendants, including Roberts, heard the discussion before the mistrial was decided.

Roberts is still retaining Chaffee as his attorney.

Chaffee has been paid with private funds, but on Wednesday she filed a request to be appointed to represent Roberts instead, saying he does not have “sufficient funds” to pay for his defense. In the same motion, Chaffee asked that a second attorney be appointed to Roberts’ case along with her.

Normally in Douglas County, when a defendant can’t afford an attorney judges appoint one from the local indigent defense panel, which Chaffee is not a member of. The judge has yet to decide on Chaffee’s atypical request.

Months ago, defense attorneys asked the judge to try their clients separately, for reasons that had nothing to do with Chaffee’s courtroom manner.

Clarke and Gilroy mainly argued that their clients were charged with lesser crimes than their co-defendant. Chaffee argued that Roberts’ co-defendants might use antagonistic defense strategies.

Siding with prosecutors, Pokorny kept the three together. She said none of the defense attorneys’ arguments demonstrated “actual prejudice” against their clients.

The morning after the mistrial, Pokorny agreed to split up the defendants. She scheduled Roberts’ trial for February, McMillon’s for March and Rayton’s for April.

•••

The Journal-World obtained the transcript on Thursday from Lawrence attorney Max Kautsch, who specializes in open government law and has been a public defender in Douglas County.

Kautsch said he requested it from the court and shared it with the newspaper because he believes knowing what caused the mistrial is in the public interest.

“The public has a right to know why a high-profile criminal trial with direct bearing on public safety was canceled and why taxpayer dollars and opportunity costs were lost,” Kautsch said.

Investigators were busy working the scene of a multiple fatality shooting midday Sunday, Oct. 1, 2017. The entire intersection of 11th and Massachusetts streets was closed while investigators gathered evidence.

Kautsch is not representing the Journal-World in the matter and requested the transcripts without the newspaper’s knowledge, though he has represented the Journal-World in past unrelated matters.

In response to his initial request, Kautsch received only the transcript of the questioning of potential jurors in open court, which he also gave the Journal-World. In a follow-up request, Kautsch cited case law and argued that he also should be provided with the transcript from the conversation in the judge’s chambers, away from jurors and spectators.

Pokorny then provided that as well, agreeing it should be made available to the public because such a conversation normally would have taken place in the courtroom. Because of the unusually large number of potential jurors, however, she and the attorneys and defendants moved to a back room instead, she told Kautsch in an email and reiterated in a phone call with the Journal-World.

“Under normal circumstances, the request for a mistrial and my ruling would have taken place in open court,” Pokorny said in the email to Kautsch. “It was simply the logistics of again moving nearly 100 jurors out of the courtroom for that hearing that caused it to take place in chambers.”

With roughly 200 potential jurors originally called in, extra deputies and security measures mobilized and in place, and scores of witnesses lined up, calling off the high-profile trial four days after it began was a major inconvenience.

And it was a blow to loved ones of people involved, including Brown’s relatives, who called the setback “devastating.”

Pokorny told Kautsch and the Journal-World that she did not declare the mistrial lightly.

“I was very aware of the pain this would cause all of the families involved in this case,” she wrote to Kautsch. “They are all looking for closure. My ruling delays that closure. For that I am sorry. However, as you well know, my obligation is to make sure the process is fair.”