Jury used WhatsApp and a documentary to decide Broward death penalty case ahead of deliberations, one juror claims

Jurors in the retrial of a former death row inmate watched a documentary about the case, joked on WhatsApp about making up their minds months ahead of time, and used the internet to look up information that had not been presented to them in court, according to a defense motion filed this week.

Defense lawyers Gabe Ermine and Rachel Newman are hoping the disclosures will result in a new trial for convicted killer Peter Avsenew, who was found guilty in June of the 2010 murders of Stephen Adams and Kevin Powell, a Wilton Manors couple.

Allegations of juror misconduct came to light in late October after one of the panelists came forward to complain that Avsenew did not get a fair trial in the penalty phase of his case, which ended Oct 12 with a unanimous recommendation to return the defendant to Florida’s death row. The panelist came to court and testified that the first part of the trial, which determined Avsenew’s guilt, was “mostly fair,” but the penalty phase was hopelessly tainted.

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“For the first part of the trial, I think mostly it was fair,” said the juror, according to a transcript of her testimony. “But then like the second part of the trial, that’s when a lot of stuff started happening that was … at the time I thought it was just laughing and joking around, and then at the end I realized what was really going on.”

Avsenew was originally tried, convicted and sentenced to death in 2018, but the state Supreme Court ruled earlier this year that his constitutional rights were violated when his mother was allowed to testify against him remotely even though she could not see him on her monitor.

His retrial this summer and fall appeared to be uneventful. He was found guilty on June 10 and the jury recommended death Oct. 12. The next part of the trial is scheduled to start Monday, with the defense attempting to persuade Broward Circuit Judge Martin Fein to override the jury’s recommendation and sentence Avsenew to life instead.

Then the juror came forward, accusing one fellow panelist of referring to an incident from the first trial, when Avsenew raised a middle finger to the victims’ families, and accusing another of digging up an inflammatory letter Avsenew sent to the judge who handled his original trial.

[ RELATED: Jury will not see ‘racist, homophobic’ letter Avsenew wrote to previous judge ]

After she testified, she provided the defense with a transcript of a WhatsApp social media text message chain that defense lawyers say proves misconduct beyond a shred of doubt.

“I have no idea what the attorney could even say to change swing [sic] the vote and little do they know we already know the answer,” one juror wrote on July 13, after the guilty verdict but nearly three months before the penalty phase even started.

“That’s correct,” another responded. “I think by now we all know which way we are voting.”

During the penalty phase in early October, the jurors talked about watching “Evil Lives Here,” a true crime documentary series. The Avsenew case was covered in season 9, episode 2 of that series. “Ya’ll [sic] be easy with the text,” one juror warned. “Don’t want ol’ Petey to find a way to get loose.”

That’s probably what should happen, said Nova Southeastern University law professor Bob Jarvis. “There is a strong likelihood, if there was such blatant misconduct in the second phase of the trial, there was misconduct in the first phase.”

[ RELATED: Facing death, defiant convict tells Broward judge he wants to kill again ]

Jurors are supposed to consider only the evidence presented in court, but technology is making it more and more difficult to hold jurors to their oaths, Jarvis said. “There is increasing likelihood a jury will stumble on information,” he said. “There is also a real temptation to be their own investigator, to say I’m going to get to the truth, I’m going to find out what really happened.”

Defense lawyers want all jurors on the case to be interviewed, and Ermine said he is all but certain to ask for a third trial.

Prosecutors declined to comment on the developments.

The next hearing on the case is scheduled for Monday morning.

Rafael Olmeda can be reached at rolmeda@sunsentinel.com or 954-356-4457. Follow him on Twitter @rolmeda.