Is anonymous-jury plan needed or is it an ‘overreaction?’

In an emotional verdict last year that left his family in tears and his lawyers wondering where they went wrong, Wyatt Ward Hollar accepted with a calm, soldierlike presence a jury’s decision that he had shot and killed his girlfriend.

On Oct. 31, the Virginia Military Institute graduate and Iraq war veteran, 29, was sentenced to 15 years in prison after being found guilty of second-degree murder and a firearms violation. He had told a Henrico County jury that the young woman had committed suicide.

In September, Hollar is scheduled to get a new trial. The reason: Days after the trial’s conclusion, his legal team contacted jurors who’d heard the case, and they learned that the jury had access to information it shouldn’t have had during deliberations.

In the future, in Virginia, such a maneuver could prove difficult: The Virginia Supreme Court is considering a proposal to keep jurors anonymous in all criminal trials and possibly restrict access to them after trial by lawyers, the media and others.

In all but extreme cases, lawyers and their clients would have available at trial jurors’ names and other juror identifiers, under the proposal. After the jury is selected, all copies of the jury information would be returned to the judge and sealed.

The change would alter centuries of legal procedure and apparently make Virginia the only state in the country where such anonymity is extended to jurors in all criminal cases.

The effort is an outgrowth of legislation passed last year that allowed judges to keep jurors anonymous when there is good reason to believe that they may be in some danger or subject to threats.

Hollar’s defense attorney, Cary B. Bowen, called the proposed measure “an overreaction.“ Under the proposal, Bowen said he might never have won Hollar a retrial.

Bowen was checking out a hunch that led him to a new trial for his client.

“I sat bolt upright in bed. It was 3 a.m.,“ Bowen said last week, recalling how the notion of possible grounds for a mistrial came to him out of the blue, in the middle of the night.

What if during deliberations the jurors saw a full version of a videotape of Hollar being questioned by police—instead of the shorter version they were allowed to see during trial?

The second juror Bowen called confirmed his suspicion, and within a matter of weeks he and co-counsel Susan Parrish gained a mistrial for Hollar.

Bowen said he felt strongly enough about his hunch that it was his duty to take the step of contacting panel members on behalf of his client.

In more than 30 years of practicing law, Bowen said, “I’ve had some tough, tough clients, but I can’t remember a single instance where any harm has come to a juror. There’s been name-calling and finger-pointing outside the courthouse [among parties at trial] but never a threat that I know of [to a juror].“

Despite clients who’ve ranged from motorcycle gang members to murderers, Bowen said there hasn’t been a history of harm coming to jurors.

Most contacts with jurors after a trial concludes, he guessed, come from the media or prosecutors and investigators who want to know what made a difference at trial.

In Hollar’s case, the tape had gone back to the jury room unedited and unredacted. Bowen said his client’s casual attitude with a jailer—something not part of the tape shown during trial—could have been mistaken for callousness at his friend’s death.

“I can’t think of another case where I thought it was important to reach jurors after a trial,“ Bowen said. “But in this case, we called two.

“One juror preferred not to comment. The other one confirmed that the jurors had seen more of the tape than they’d witnessed in court,“ Bowen said. The second juror submitted a sworn affidavit about what had happened; the document is part of the public court record.

The juror did not return calls asking for comment last week.

In January, Judge Gary A. Hicks of Henrico Circuit Court declared a mistrial in Hollar’s case after taking the highly unusual step of summoning all jurors who heard the case and confirming in open court that more of the tape had been seen in deliberations than in court.

The mistrial was granted, even though jurors said they hadn’t been influenced by the additional portions of the tape. It is unlikely that a judge would recall a jury after trial based on a lawyer’s unsupported notion that some wrong had occurred during deliberations.

In Hollar’s case, Hicks concluded that because jurors considered material during deliberations that they had not seen at trial, grounds existed to throw out the case.

The unusual posture of the murder case is made even stranger by another legal twist not related to the jury.

Hollar’s retrial may be in some jeopardy.

When Hollar was convicted, his lawyers appealed to the Virginia Court of Appeals. The appeal notice was filed before the mistrial was granted.

On May 1 this year, the appeals court concluded that because Hicks failed to enter an order vacating his sentence of Hollar in a timely manner, he lost jurisdiction of the case and had no authority to grant the mistrial.

Hicks’ sentencing order became final after 21 days, the appeals court said.

Hicks, though, isn’t budging. He entered an order May 21, retroactively effective to Nov. 24 last year, suspending execution of Hollar’s conviction and sentence.

He has set a date in September for Hollar’s retrial, holding the case in Henrico despite the appeals court’s decision that Hollar’s appeal of his earlier conviction is still alive.

Bowen has filed a motion with the appeals court asking to withdraw the appeal.

There had been no decision as of last week.