Juror Misconduct is a Hard Ship to Navigate

Originally published by John Floyd.

Raymond Baker was convicted in December 2015 in U.S. district court in the Northern District of New York for conspiracy to distribute drugs. Several weeks after the conviction a juror sent Baker’s attorney an email making two allegations of misconduct among the jurors who convicted Baker after just three hours of deliberations. The allegations were:

 

1. “The jury was instructed on several occasions to ‘keep an open mind’ and not discuss the case among themselves until it received the case from the Court. This did not happen. There was discussion among many jurors during virtually every break.”
2. “After the verdict was rendered I overheard one juror say that he knew the defendant was guilty the first time he saw him (before he was sworn in as a juror).”

 

In this case, the trial judge after administering the oath to jurors specifically instructed the jury to “decide the case based on what you hear and see in the courtroom,” to “keep an open mind until you have heard all the evidence in this case and the court’s charge on the law,” and to remember that the “defendant … starts out the trial with a clean slate.”

 

Law Presumes Jurors Will Follow Oath

 

Established case law presumes that “jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court.”

 

Every criminal defense lawyer who has practiced in either federal or state courts knows that this presumption is wrong. Too many jurors enter the courtroom with preconceived biases and social attitudes prone to convict. Evidence beyond a reasonable doubt, they believe, is an outdated notion unless they or one of their love ones is facing a criminal trial.

 

In an August 8, 2018 decision, the Second Circuit Court of Appeals rejected Baker’s credible claim of jury misconduct. Standing by its established precedent, the appeals court said a post-verdict inquiry into allegations of jury misconduct is required only “when there is clear, strong, substantial and incontrovertible evidence … that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.”

 

The Second Circuit said that, like most other courts, it is wary of the “evil consequences” likely to flow from such post-verdict inquiries such as “’subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts.”

 

Appeals Courts Require Proof of Impropriety

 

These and other possible consequences are why courts, like the Second Circuit, demand that jury misconduct allegations be “concrete allegations of inappropriate conduct that competent and relevant evidence,” though they need not be “irrebuttable [because] if the allegations were conclusive, there would be no need for a hearing.”

 

The Second Circuit in the Baker case said that both allegations of misconduct involved “statements made by jurors themselves, rather than to outside influences” thereby giving the trial court “broad flexibility in responding to allegations of such misconduct.” The appeals court said that while these statements/conversation may be considered “premature deliberations,” it noted that not “every comment a juror may make to another juror about the case is a discussion about a defendant’s guilt or innocence that comes within a common-sense definition of deliberation.”

 

The Second Circuit pointed to a lengthy list of cases that did not find jury misconduct:

 

• United States v. Morales – post-verdict juror note alleging some jurors violated the district court’s instruction not to discuss the case among themselves prior to deliberations “only suggested the possibility of premature deliberations (as opposed to jokes, idle comments, or other generalized discussions).”
• United States v. Sabhnani – affirming denial of post-verdict interview because a “potentially out-of-context, single word comment does not demonstrate that the jurors prematurely deliberated and does not demonstrate that the juror would be unreceptive to opposing arguments or that any juror failed to participate in deliberations in good faith.”
• United States v. Leung – concluding that Rule 606(b) prohibits post-trial inquiry of jurors into effect of premature deliberations because such an inquiry “intrudes upon jurors’ mental processes concerning the verdict” and “how jurors considered the evidence or their mental states while hearing testimony.”
• United States v. Richards – finding no abuse of discretion in denying motion for new trial based on juror’s post-trial affidavit attesting that he “overheard two jurors comment in the presence of other jurors and prior to the close of evidence that they believed the defendant] was guilty” because inquiry into “whether or not the premature statements affected their verdict” would be prohibited by Rule 606(b).
• King v. United States – concluding that an evidentiary hearing was not required because “weakly authenticated, vague, and speculative material” constituted a “frail and ambiguous showing.”

 

Racial Prejudice Denies Jury Trial Guarantee

 

Last year the U.S. Supreme Court in Pedro-Rodriquez v. Colorado spelled out virtually the only

route to establishing jury misconduct when a juror “makes a clear statement that indicates that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule (Rule 606b) give way in order to permit the trial court to consider evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”

 

That is a difficult needle through which to pass the thread, but the reality is that preconceived juror bias and violations of the judge’s instructions, no matter how flagrant, will not pass the thread through the Rule 606(b) needle.

 

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