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Government of Virgin Islands v. Weatherwax

March 13, 1996




District Court of the Virgin Islands Division of St. Croix (D.C. Crim. Action No. 88-cr-00139)


STAPLETON, Circuit Judge

Argued August 16, 1995

Filed March 13, l996)


This is the second time that this habeas corpus proceeding has been before us. In the previous appeal, Government of the Virgin Islands v. Weatherwax, 20 F.3d 572 (3d Cir. 1994), we reversed the district court's dismissal of Weatherwax's petition for a writ of habeas corpus and remanded for an evidentiary hearing on Weatherwax's claim of ineffective assistance of counsel. After holding the evidentiary hearing, the district court granted Weatherwax's petition for habeas relief. We will reverse.


William Weatherwax was indicted for the shooting death of St. Clair Hazel. A jury acquitted him of first degree murder but convicted him of second degree murder and unlawful possession of a weapon. We affirmed on direct appeal. Government of the Virgin Islands v. Weatherwax, 893 F.2d 1329 (3d Cir. 1989).

Weatherwax thereafter filed a petition for a writ of habeas corpus, raising several arguments. Only one of those arguments is relevant to this appeal. Weatherwax alleged that during his trial a juror was observed with a newspaper containing an article about the trial. The article allegedly reported an inaccurate and unfavorable account of Weatherwax's testimony. Both Weatherwax and members of his family informed defense counsel of this fact but the lawyer failed to bring the matter to the trial court's attention. Weatherwax claimed that his attorney's failure to bring this matter to the court's attention constituted ineffective assistance of counsel.

The district court rejected that argument, reasoning that the newspaper article was "a verbatim and dispassionate account of the testimony adduced at trial" which accordingly could not be prejudicial. Weatherwax, 20 F.3d at 575. We came to a different conclusion, however, finding that the actual trial testimony varied from the newspaper account in several significant respects. We found that the difference between the article version and the official transcript, "[a]lthough subtle," could have been unfairly prejudicial because Weatherwax's testimony (but not the newspaper account) "argue[d] against second degree murder and support[ed] Weatherwax's self-defense testimony." Id. at 577. *fn1

We further found that "[i]f the jurors . . . read the damaging article with its distorted reporting of Weatherwax's testimony, the likelihood of resulting taint to the fairness of the trial [would be] apparent [and] Strickland's second prong would also be met." 20 F.3d at 580. We, therefore, instructed that if the district court found on remand (1) that a juror in fact had brought the newspaper into the jury room and (2) that Weatherwax's lawyer had been informed of this, then Weatherwax would have "made out a prima facie case of ineffective assistance of counsel under the Strickland [v. Washington, 466 U.S. 668 (1984),] standard." Id. If such a "prima facie" case were established on remand, we instructed that, "[t]he government must then be afforded the opportunity to question Weatherwax's counsel relative to his failure to request the voir dire in order to show, if applicable, that counsel proceeded on the basis of 'sound trial strategy.'" Id. (quoting Strickland, 466 U.S. at 689).

On remand, the government did not contest Weatherwax's claims (1) that a juror in fact had had possession of a newspaper in the jury room and (2) that Weatherwax's lawyer had been informed of this. Thus, Weatherwax made out a prima facie case of ineffective assistance of counsel under Strickland, and the burden shifted to the government to show that Weatherwax's counsel had proceeded on the basis of "sound trial strategy."


To meet its burden, the government called Weatherwax's trial attorney, Michael Joseph. In response, Weatherwax called his sister and his brother-in-law, who were present during the trial, and gave his own account of the relevant events. With the sole exception noted below, the testimony of these witnesses was not in conflict.

Joseph, an experienced criminal defense lawyer and a lifelong resident of the Virgin Islands, was privately retained by Weatherwax. Weatherwax stayed with Joseph in his home during the last few days of pretrial preparation and throughout the trial. Joseph considered it "a very difficult case." (J.A. at 23.) Among other things, he explained to Weatherwax the strategy he intended to use in selecting a jury. That strategy was based in part on the fact that Weatherwax's case had created a racially charged atmosphere in the Virgin Islands because Weatherwax was white, a so-called "Continental," and the victim was black. It was also based on the facts surrounding the victim's death and Weatherwax's anticipated defense. Joseph testified:

Q. [D]id you have a strategy, sir, with regard to selecting a jury?

A. Of course.

Q. And what was that strategy?

A. . . . I saw this case as a case in which the facts really were not too much in dispute as compared to the jury that would hear the facts and interpret the facts. For instance, it would be undenied that an unlicensed firearm was involved. It would be undenied that Mr. Weatherwax possessed an unlicensed firearm. It would be undenied that Mr. Weatherwax discharged an unlicensed firearm. It would be undenied that the person who was shot did not have a firearm. And it would be undenied that there would be witnesses who would have conflicting stories as to what danger he presented to Mr. Weatherwax. Therefore, I thought Mr. Weatherwax's perception as to what was happening to him, which is the gist of a self defense case, not what's really happening but whether the person reasonably perceived themselves to be in danger was the gist of this case and we needed jurors who would identify with that situation.

* * * *

Q. What were you striving to achieve in the composition of the Weatherwax jury?

A. Sympathy.

Q. And were you doing that based upon the profile of certain venire persons?

A. Absolutely.

Q. What were you looking for specifically?

A. I was looking for as many Continentals on the jury as possible.

Q. And for what reason did you do that?

A. Sympathy.

Q. Is that another way of saying you would assume that they identified with the defendant?

A. Absolutely. (J.A. at 23-24, 26-27.)

Joseph further testified that a second objective of his trial strategy was to persuade the jury to convict only on a lesser included offense in the event the evidence of self defense did not produce an acquittal on all counts.

The jury ultimately selected to hear Weatherwax's case consisted of three white and nine black jurors. It was the largest number of Continentals Joseph had ever seen on a Virgin Islands jury and he was "ecstatic." (J.A. at 28.)

On numerous occasions during the trial, the trial judge admonished the jury to avoid reading articles about the trial in the newspaper. He did not, however, instruct them not to read a newspaper.

On the morning of the last day of the trial, after Weatherwax had finished his testimony and just as the prosecution was about to call its rebuttal witnesses, Weatherwax's sister, Sally Lay, and his brother-in-law, William Lay, observed a juror walk from the jury room into the court room with a local newspaper under his arm. They did not observe him reading the newspaper and, accordingly, did not know what portion of the paper the juror had been exposed to. Mr. and Mrs. Lay advised Weatherwax and a bailiff of their observation. The bailiff took no action but advised them to speak to their lawyer.

The Lays, Weatherwax, and several other members of his family took the bailiff's advice and informed Joseph about the newspaper as he was entering the door of the courtroom. A conversation ensued. Weatherwax expressed the view that it was "not right" for the juror to have a newspaper and he as well as his relatives asked Joseph to do something about it. (J.A. at 64.) Mrs. Lay described the conversation and Joseph's response in the following terms:

Q. You didn't ask anything -- all I'm asking you, ma'am, is you didn't ask him to do anything specific. You just asked him to do something about it?

A. We asked him to do something about it, file a motion or something and he said he would file a motion for a mistrial tomorrow.

* * * *

Q. And that's not all he said, did he? He said something else didn't he?

A. In this conversation?

Q. Yes.

A. Yes, he did.

Q. What did he say?

A. He said that he -- well, he said a lot of things during the course of the conversation.

Q. As specifically as you can recall, Mrs. Lay, I would like for you to tell the Court everything that Mr. Joseph said.

A. He said that the jury [sic] with the newspaper is a white man. He would help Billy's case. He was on our side. Leave it alone. He would ...

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