Sunday, December 7, 2008
I have seen some strange jury impeachment cases on this blog and while preparing an article on the subject. One of those cases involved what I regarded as the judge's "horribly misguided" denial of a motion for a mistrial despite evidence of juror slurs against Iranians in the lawsuit between Mattel and MGA Entertainment over the Bratz doll line. And assuming that I was right, it was a million(s) dollar mistake as MGA has now been banned from making and selling its pouty-lipped and hugely popular Bratz doll line.
A recent case involving an "undercover mother," though, has to take the cake. In that case, John Guica was convicted of the 2003 murder of Mark Fisher, a 19-year-old college student from Andover, N.J., who had gone to an after-hours party Guica hosted in Brooklyn. The conviction nearly gave John's mother, Doreen, a nervous breakdown, and she eventually hatched a plan to begin spying on jurors to see if she could uncover any misconduct.
Specifically, she slimmed down, got a blonde dye job, fake tan, and sexy wardrobe, rented an apartment near the apartment of former juror Jason Allo, and printed business cards with her assumed name: Dee Quinn, a recent West Coast transplant. And what did her husband think of this behavior? Well, he initially thought that she was crazy but eventually backed down.
Thereafter, Doreen struck paydirt as she orchestrated a chance meeting with Allo on the street, pretending to be a lonely single woman from California and giving him her phone number. Over the next 7-8 months, the two drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.
While there was flirting between the two, both agree that the flirting never went any further. But that's not what Doreen was after. She was after juror misconduct, and she was able to record Jason saying that, before trial,
he didn't know [John] Giuca directly, but used to hang out in his clique and heard rumors about the Fisher slaying — something he failed to mention when questioned under oath during jury selection. Asked if he had been curious about newspaper accounts of the trial [during trial], he responded that he'd read them. He also bragged that he had been the first one during deliberations to vote for a conviction."
So, can mom's recording be used in court to attempt to get her son's conviction tossed out? And my answer is that it likely can, in part.
Fist of all, part of Allo's statement indicated that he concealed his knowledge of the case during voir dire, meaning that the recording should be admissible to determine whether there was indeed concealment and enough prejudice to justify reversal. See, e.g., People v. West, 772 N.Y.S.2d 166, 168 (N.Y.A.D. 4 Dept. 2004).
But, what about the part where Allo admitted to reading newspaper accounts of the trial during trial?
Federal Rule of Evidence 606(b) states in relevant part that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that. But a juror may testify on the question about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) or whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."
And "[a]lthough New York has not adopted a statute similar to Rule 606(b), [New York] state common law 'is consonant with its underlying principles....'" People v. Brandon, 785 N.Y.S.2d 286, 288 (N.Y.City Crim.Ct. 2004).
Well, as I have noted before, newspaper accounts of trial are extraneous prejudicial information and thus form the proper predicate for jury impeachment. Thus, this portion of the recording should also be admissible.
Conversely, as I have also previously noted, "[Rule 606(b)] strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.'" Thus, the portion of the recording where Allo bragged that he had been the first one during deliberations to vote for a conviction will likely be deemed inadmissible.
(Hat tip to my student Lindsey Shapiro)