Lawyer could face charges for contacting jurors

Wednesday, September 17, 2008 | 11:58 a.m. CDT; updated 3:02 p.m. CDT, Wednesday, September 17, 2008

KANSAS CITY — A Kansas City attorney is facing possible federal contempt charges after contacting jurors who ruled against his client in a civil rights case.

Federal court records indicate James Ensz sent a questionnaire to jurors last week. Ensz represented Richard McKinley in a lawsuit accusing the Lee's Summit police officer of conspiring to put Theodore W. White Jr. in prison on false child molestation charges.

The jury awarded $16 million to White, who spent more than five years in state prison before being acquitted at his third trial. He claims McKinley, who was the case detective, hid evidence and covered up and lied about having an affair with White's then-estranged wife, whom the officer later married.

U.S. District Judge Nanette Laughrey held a telephone conference with attorneys last week to talk about the questionnaire, court documents show.

"The court informed Mr. Ensz that it is inappropriate to send out correspondence to the jury," the meeting minutes said. "... A party must obtain permission from the court in advance of contacting any juror."

In a motion filed Tuesday, Ensz defended his actions and asked Laughrey to cancel a contempt hearing scheduled for Oct. 14.

"There is nothing inappropriate about the questions asked nor is there any pressure placed upon jurors to respond to the questionnaire should they choose not to respond," Ensz wrote.

Among the questions Ensz's letter asks jurors was whether they felt certain witnesses were credible and how much certain pieces of evidence affected their decisions. Jurors were also asked if they felt the judge favored one side or the other and asked for specific examples of  favoritism and how that influenced their verdict.

They were also asked if they would sign a sworn affidavit attesting to their answers.

Lee's Summit has agreed to pay the award against McKinley, provided the city was dropped as a defendant in the case.

Court documents don't disclose the penalties Ensz would face if found guilty of contempt. Federal law permits punishment that includes fines and jail time.

During last month's trial, Laughrey frequently warned Ensz about trying to tell jurors about the criminal allegations filed against White. Ensz has kept the fight going, claiming in paperwork filed Monday that Laughrey, through her rulings during the trial, was guilty of "sculpting the evidence" and turning the trial against McKinley.

Federal courts in the Western District of Missouri don't have specific prohibitions on lawyers contacting jurors. But White's attorney, Brian McCallister, argued to Laughrey that rulings by the 8th U.S. Circuit Court of Appeals, which covers Missouri, made such information inadmissible in court.

Other rulings have recommended that court permission is required before attorneys can speak to jurors.

But Ensz, in his filings, has pointed out the lack of a specific ban and said blocking him from contacting the jury violates his First Amendment rights.

"There is no basis for the court's action," he wrote.

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