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Wednesday, November 28, 2007

Runaway Jury?: Judge Denies Motion for Mistrial Despite Evidence of Juror Misconduct

Jesus Colmenero Rivera is on trial in Superior Court in Merced, California based upon allegedly having committed various sex crimes.  Rivera served as a Spanish and Drama instructor at Golden Valley High School until January 2004, when one of his students made a report of sexual abuse to school administrators and police, which opened the floodgates of other students bringing similar allegations.  The case was recently submitted to the jury, and despite several objections by Rivera relating to alleged juror and judicial misconduct, Judge Ronald Hansen has ordered the jury deliberations to proceed.

First, last week prosecutor David Sandhaus moved for the dismissal of a juror who made a statement about his brother, a convicted serial child molester, during jury deliberations, claiming that he was biased and that his experience with his brother was interfering with his ability to make a fair judgment.  Judge Hansen granted the motion and replaced the juror with an alternate juror.  Rivera's attorneys asked for a mistrial because the juror had not committed any misconduct.  Second, the dismissed juror then made the following allegations to the press, all of which prompted Rivera's attorneys to ask for a mistrial:

     -a female juror made homophobic comments about Rivera, who is gay;

     -another juror stated that Rivera must be guilty solely because there were five alleged victims, even though the judge instructed the jury to consider each count separately; and

     -another juror was conducting legal research and reading about the case on the internet.

Rivera's attorneys also claimed that there was evidence that the other jurors were ganging up against the sole dissenter against a guilty verdict, although it is unlcear if this evidence came from the removed juror or elsewhere. Judge Hansen interviewed each of the jurors outside the presence of the press and determined that there was no reason to grant a mistrial.  Judge Hansen also found that he properly removed the juror who made the statement about his brother, and thus ordered that jury deliberations continue.

Here are my thoughts.  First, depending on what the removed juror said, Judge Hanson's decision to dismiss him could have been proper or improper.  It is well established that a juror can be removed mid-trial if it is established that he cannot act impartially. See, e.g., United States v. Harbin, 250 F.3d 532 (7th Cir. 2001).  Thus, if the removed juror stated that he doubted that Rivera was guilty because he thought he was being persecuted just like his brother, the removal would have been proper; however, if the removed juror merely made an innocuous comment about his brother, his removal would have been in error.

Next, with regard to the alleged juror misconduct, California Evidence Code Section 1150 has been interpreted as similar to Federal Rule of Evidence 606(b), which holds that jurors can't testify about their thought process in reaching a particular verdict, but they can testify about either whether extraneous prejudicial information was brought before any juror or whether there was any improper outside influence brought to bear on any juror. See, e.g., People v. Steele, 47 P.3d 225 (Cal. 2002).

Using this analysis, it first appears that the claim about the juror ignoring jury instructions cannot support the granting of a mistrial.  Courts have found that evidence that a juror misunderstood or ignored jury instructions is exactly the type of evidence about jury deliberations that is inadmissible under Rule 606(b). See, e.g., Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1320 (8th Cir. 1985).

Rivera's claims about homophobic comments and ganging up on a dissenting juror are also likely without merit.  Courts have generally also found this type of evidence to be inadmissible under Rule 606(b). See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that jurors' racial slurs against Native Americans and juror's claims that other jurors pressured her into changing her vote was inadmissible under Rule 606(b)).  I will note, however, that some courts have expressed the viewpoint that precluding evidence of racial slurs used by jurors might violate the 14th Amendment, but it is doubtful that courts will apply this analysis to homophobic comments. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995).

On the other hand, unless Judge Hansen found that there was no merit to the claim that a juror was conducting legal research or reading about the case on the internet, his decision would have been in error because such research would constitute exactly the sort of extraneous prejudicial information that is not covered by Rule 606(b). Cf. United States v. Martinez, 14 F.3d 1030, 1037 n.3 (5th Cir. 1994). 

-CM

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