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Saturday, February 14, 2009

Dismissed With Prejudice?: Eastern District Of Tennessee Issues Strange Opinion In Appeal Alleging Juror Racial Bias

I am currently in the final stage of completing my new article, Dismissed With Prejudice, which argues that precluding jurors from impeaching their verdicts after trial based upon allegations of racial, religious, or other prejudice violates the right to present a defense. And as part of that final stage, I was scanning recent opinions on the issue and came across the opinion of the United States District Court for the Eastern District of Tennessee in United States v. Taylor, 2009 WL 311138 (E.D. Tenn. 2009). At first this seemed like a promising opinion which bucked the majority trend and allowed jury impeachment based upon allegations of racial prejudice. But on closer inspection, I realized that it was a poorly reasoned opinion that, to paraphrase Inigo Montoya, doesn't mean what the judge thinks it means.

In Taylor, Rejon Taylor, an African-American man, was convicted of four capital offenses in connection with a carjacking, kidnapping, and murder and given a death sentence. He thereafter moved for a new trial and evidentiary hearing and moved to interview jurors ahead of that hearing. The basis for the latter motion was at least two-fold. First, according to alternate juror Everage Holloway and two regular jurors, all 12 seated jurors and all six alternates were aware of and discussed media reports which indicated that Taylor had called jurors "racist rednecks." Also, according to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life."

In addressing Taylor's motion, the court considered Federal Rule of Evidence 606(b), which indicates 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) 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.

Under this Rule, the court's analysis of the first allegation was easy. The media reports were clearly extraneous prejudicial information, could form the proper predicate for jury impeachment, and led the court to grant Taylor an evidentiary hearing on the issue.

The second allegation posed a tougher question, and the court did not handle it well. In deciding whether it could address the allegation of racial bias, the court noted that the controlling precedent was the Sixth Circuit's precedent in Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), which "list[ed] a juror's use of racial slurs as an internal influence" and thus not a proper subject for jury impeachment. Nonetheless, the court found that this "conclusion [wa]s unsupported by any discussion" and noted that the opinion went "on to discuss whether racial slurs affected the defendant's right to a fair trial." I disagree with this first conclusion. The Sixth Circuit clearly cited the Supreme Court's opinion in Tanner v. United States, 483 U.S. 107 (1987), which clearly held that something that originates from the jurors themselves is internal to the jury deliberation process and not the proper predicate for jury impeachment.

The court then cited three other opinions, which it cited for the proposition that "[o]ther circuit courts have held that evidence about jurors' racial bias is admissible under Rule 606(b) or to ensure a fair trial." But the first opinion it cited, United States v. Henley, 238 F.3d 1111 (9th Cir. 2001), concluded nothing of the sort; instead, it found that a juror's comments were admissible to show that he lied during voir dire, not to (directly) impeach the verdict. And the second opinion it cited, Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987), found that allegations of racial slurs did not form the proper predicate for jury impeachment and then, relying on Tanner, quickly shot down the defendant's argument that such an application of Rule 606(b) violated his Sixth Amendment right to a fair trial. And while the third opinion did indeed find that juror (anti-Semitic) bias did form the proper predicate for jury impeachment, "Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).

But, let's put the court's apparent cherry picking for a second. Whether properly or improperly, it clearly seems to me that the court was saying that Rule 606(b) shouldn't be read to preclude jury impeachment through allegations of racial bias and at the very least that a strong argument could be made that the preclusion of such impeachment would violate a defendant's Sixth Amendment right to an impartial jury. So, what did the court do?

Well, it snatched defeat from the jaws of victory. According to the Court,

In Tanner, the Supreme Court noted defendants' rights to a fair trial are protected by several aspects of the trial process: the determination of jurors' suitability at voir dire; the observations of the jury by the court, counsel, and court personnel; the observations of jurors by each other, who can report inappropriate behavior to the court "before they render a verdict"...; and the ability to impeach a verdict with nonjuror evidence of misconduct....Here, neither Juror # 256, Holloway, nor any other juror or nonjuror reported any incident of racial bias to the Court or court personnel. Jurors at times communicated with court personnel over scheduling issues and comfort issues, and no one reported any of the issues now raised by Holloway. At the start of trial, counsel had an opportunity to conduct suitable voir dire, which consisted of a lengthy written questionnaire and then oral questioning of jurors, first in large groups, then in small groups. In addition, the Court, counsel, and court personnel observed jurors throughout the trial without learning of any racist behavior. Finally, in its verdict form determining Defendant should receive the death penalty each juror affirmed their decision was not influenced by race. The Court concludes there is no credible allegation of racial bias infecting the proceedings.

What? Of course nobody came forward during trial. If they did, the judge would have decided whether jurors needed to be dismissed or whether there needed to be a mistrial, and those decisions could have been reviewed on appeal. In other words, Rule 606(b) would have been inapplicable. It seemed to me that the court was arguing against the Sixth Circuit precedent it was citing, but, instead, the above conclusion clearly establishes that the United States District Court for the Eastern District of Tennessee (like most courts) is never going to allow jurors to impeach their verdicts after trial through allegations of racial bias.

-CM

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