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General Motors Corp. v. Jernigan12/12/2003
by this Court.
In early April 2002, Judge Smithart took a three-day vacation trip to Mexico with several lawyers, one of whom was Greg Allen, one of Jernigan's lawyers in this case. Before taking the trip, Judge Smithart contacted the Judicial Inquiry Commission and asked whether taking a vacation trip that included a lawyer involved in a case before him involved a breach of judicial ethics. The executive director of the Judicial Inquiry Commission told Judge Smithart that there would not be any problem with the trip and that it was not necessary to inform the parties about the trip. Nevertheless, in late March, Judge Smithart did inform the parties in writing and offered to cancel the trip if either party objected. GM did not formally respond, although two lawyers for GM told lawyers for Jernigan that GM had no objection. On April 1, however, GM renewed its motion to recuse, and on April 2, filed a motion for a change of venue, citing the trip, Jernigan's prominent position in the community, and the "relationship" between Jernigan and Judge Smithart. After Judge Smithart returned to Alabama, GM supplemented its motion to recuse with further argument about the trip. After a hearing on the evening before trial began, Judge Smithart denied both motions. GM then filed a petition for a writ of mandamus with this Court on April 25, three days after trial had already begun, seeking either Judge Smithart's recusal or a change of venue. This Court denied the petition. Ex parte General Motors Corp. (No. 1011450, April 30, 2002).
C. Jury Selection
The jury venire for this case consisted of 70 prospective jurors. The attorneys for both parties and the trial court questioned the venire at length. Ten veniremembers had dealt with Jernigan in his capacity as circuit clerk, 7 either worked in the courthouse or had relatives who did, 13 knew Nickolas, 11 knew Jeffrey, 8 knew about the accident, and all but 2 responded positively when asked whether they were sympathetic to the Jernigan family. Thirteen veniremembers were or had been clients of one of the law firms representing Jernigan, and six had consulted one of those firms. Only three veniremembers indicated that they could not be impartial, however, and they were struck for cause.
Myron Penn, a lawyer who is of counsel to the law firm of Jinks, Daniel & Crow, one of the firms representing Jernigan, was present in the courtroom for jury selection, but did not participate in the trial. The venire included Juanita Penn, whose husband is Myron's uncle; Irene Penn, whose husband is Myron's first cousin; Willie Ann Penn, whose husband is Myron's uncle; and Clarence Penn, who is Myron's second or third cousin. Three of the Penns and three other veniremembers either had worked on Myron Penn's campaign for state senate or had displayed bumper stickers on their vehicles and/or signs in their yards advocating his election. Another veniremember, Tawanda Shepherd, is a cousin of Walter McGowan, a lawyer with Gray, Langford, Sapp, McGowan, Gray & Nathanson, a firm that also represented Jernigan in the trial.
Shepherd is employed by the Bullock Probate Court and previously had worked with the Jinks firm and with Carmella Penn, a relative of Myron Penn's and an attorney at Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., another law firm representing Jernigan. In response to individual questioning, all five of these veniremembers said they could be fair and impartial in the case. GM moved to strike all five for cause, but the trial court denied those motions. GM exercised peremptory strikes as to Irene Penn, Juanita Penn, Clarence Penn, and Tawanda Shepherd; it did not strike Willie Ann Penn, who would become an alte
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