Wednesday, March 25, 2009
Readers of this blog are intimately acquainted with the plight of Kerry Dean Benally. Last December, I wrote a post which laid out the basic details of his trial and its aftermath:
An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged.
After the verdict was entered, however, a problem soon arose. When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves. Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about wanting to send a message to the reservation. Notwithstanding Federal Rule of Evidence 606(b), the anti-jury impeachment rule, the United States District Court for the District of Utah allowed for the admission of Cano's affidavit and vacated Benally's conviction. At the time, I noted, "The Benally case...appears to be the first case in which a court in the Tenth Circuit has considered post-verdict evidence of juror racial bias in reversing a verdict."
And the Tenth Circuit wasn't very happy with the district court's decision. It subsequently reversed, finding that:
(1) Rule 606(b) only permits jury impeachment based upon allegations of extraneous prejudicial information or improper outside influences, and allegations of juror bias fit in neither box;
(2) An inquiry into whether a juror lied on voir dire is constructively an inquiry into the validity of a verdict, which is precluded under Rule 606(b); and
(3) The Supreme Court found in Tanner v. United States, 483 U.S. 107 (1987), that the application of Rule 606(b) to allegations of an incompetent (drunk/high/sleepy) juror does not violate the Sixth Amendment right to a competent jury, so the application of Rule 606(b) to allegations of a biased (racist) juror does not violate the Sixth Amendment right to an impartial jury.
Well, unfortunately, on Monday, the Tenth Circuit denied Benally's en banc request in United States v. Benally, 2009 WL 738393 (10th Cir. 2009), but there were some interesting and compelling dissenting opinions. In his dissenting opinion, Judge Briscoe noted that Rule 606(b) only precludes post-trial juror testimony "[u]pon an inquiry into the validity of a verdict," not to prove that a juror lied during voir dire. According to Briscoe,
If, as Mr. Benally asserts, one or more jurors failed to honestly respond to the district court's questions during voir dire, then Mr. Benally would have established the existence of a structural defect in his trial, i.e., the deprivation of his Sixth Amendment right to an impartial jury.
I agree. Indeed, this is one of the points that I make in my new article, Dismissed with Prejudice. But, I am not alone. Instead, as I note in my article, “[c]ourts have universally held that [Rule 606(b)]…do[es] not preclude evidence to show that a juror lied on voir dire." Well, at least courts had universally come to this conclusion before Benally. So, where did the Tenth Circuit go wrong? Well, as I note in my article and as Briscoe noted in his dissent, the Tenth Circuit relied upon the opinion in Williams v. Price, 343 F.3d 223 (3rd Cir. 2003), where the Third Circuit merely found (because it was dealing with a habeas petition), that there was no Supreme Court precedent clearly establishing that jurors could testify concerning juror deliberations to prove that a juror lied during voir dire. And the Third Circuit was correct. There is no Supreme Court precedent on the issue (yet). But before Benally, circuit courts universally had allowed such testimony, meaning that the Tenth Circuit created a circuit split based upon a flawed reading of Price. Judge Briscoe also claimed that even if Cano's affidavit were potentially precludable under Rule 606(b), it was admissible because juror bias/racism constitutes "extraneous prejudicial information," a proper predicate for jury impeachment under the Rule. I wish that I could agree with Judge Briscoe on this point, but as I noted in my last post on Benally, "extraneous prejudicial information" covers external evidence (such as a newspaper article about a failed polygraph test finding its way to the jury), not information, however, biased, that comes from a juror himself. I do, however, agree with the third part of Judge Briscoe's dissent, in which he found that the Tenth Circuit improperly conflated the Sixth Amendment right to a competent jury with the Sixth Amendment right to an impartial jury. In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that the application of Rule 606(b) to allegations that jurors got drunk, got high, and slept through parts of trial did not violate the the Sixth Amendment right to a competent jury. According to the Tenth Circuit, this meant that the application of Rule 606(b) to allegations that jurors used racial slurs during deliberatoons did not violate the Sixth Amendment right to an impartial jury. As I do in my article, Judge Briscoe disagreed, finding that there is a fundamental difference between the two rights because "the Sixth Amendment right to an impartial jury is itself a 'structural feature' of the justice system, and..., as a consequence, a violation of this right is not susceptible to harmless error review." Judge Murphy also dissented, noting that there is a circuit split on the issue(s) raised by Benally, meaning that it was "undoubtedly worthy of en banc review." The question then becomes whether Benally will try to get heard by the Supreme Court and whether the Supremes will grant cert. I certainly hope so, and maybe if they do, they will find, as I argue in my article, that the application of Rule 606(b) to allegations of juror racism violates the right to present a defense.