Thursday, July 23, 2009
Gone Fishin'?: Eastern District Of Pennsylvania Denies Evidentiary Hearing Into Juror Misconduct In State Senator's Case
Federal Rule of Evidence 606(b) provides 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. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
What this means is that if a defendant has enough evidence that the jury's verdict was tainted by extraneous prejudicial information, the court should conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. In its recent opinion in United States v. Fumo, 2009 WL 1977715 (E.D. Pa. 2009), the United States District Court for the Eastern District of Pennsylvania did not award the defendant such a hearing, and I'm not sure that this was the correct decision.
In Fumo, former Pennsylvania state senator was convicted in connection with five areas of wrongdoing: (1) fraud and conspiracy to defraud the Pennsylvania Senate; (2) fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods; (3) conspiracy to defraud the United States Internal Revenue Service (“IRS”); (4) fraud related to the Independence Seaport Museum (“ISM”); and (4) obstruction of justice and conspiracy to obstruct justice.
Fumo eventually filed a second motion for new trial.
As described in an Affidavit submitted by Fumo's trial counsel, Dennis Cogan, Esq., journalist Ralph Cipriano contacted Cogan regarding information he obtained during post-verdict interviews with several jurors. In these interviews, Cipriano purportedly learned of several extrajudicial influences upon the jury. First, by the morning of Monday, March 16, 2009-the day the verdict was delivered-all of the jurors allegedly heard media reports describing both juror Eric Wuest's improper use of social networking sites during trial and the fact that he was being questioned by the Court. Second, one of the jurors indicated that, while at her workplace on a Friday during trial, several co-workers informed her of Fumo's prior prosecution and the conviction and imprisonment of John Carter, former president of the Independence Seaport Museum. In light of this newly-discovered information, Defendant Fumo s[ought] both an evidentiary hearing on the juror exposure to extraneous information and, in turn, a new trial.
Cipriano also used the information he obtained to write the article, Fumo, After The Fall. Despite this evidence, the Eastern District of Pennsylvania refused to order an evidentiary hearing, concluding that
[t]he Defendant's hearing request is precisely the sort of “fishing expedition” against which our jurisprudence has cautioned. Initially, it is worth noting the circumstances behind the claimed new evidence. According to the government, Ralph Cipriano, an independent journalist who was present for the duration of the trial, conducted interviews with several jurors in preparation of an article to be published in Philadelphia Magazine. Upon learning of the jurors' awareness of extraneous information, he immediately contacted defense counsel Dennis Cogan, without ever extending the same courtesy to Government counsel. When Government counsel attempted to speak with him regarding this new evidence, Cipriano, both directly and through his editor, declined to reveal any information about his interviews or the identity of the juror. By doing so, Cipriano and Philadelphia Magazine oddly chose not to balance the scales upon discovery of information that could affect the widely-publicized trial and conviction of a high-profile public figure.
Really? When I think of a fishing expedition, I think of a party with either vague or no allegations seeking a hearing to see what he can uncover. And that clearly wasn't the case here. Here, there were specific allegations, and Fumo was merely seeking the evidentiary hearings to figure out the details. I also don't see why the (mis)behavior of the journalist should be imputed to Fumo and hurt his chances of obtainingan evidentiary hearing. Was the court saying that if Cogan had extended the same courtesy to the Government, it might have granted the hearing?
I find much more persuasive the court's second reason for denying the hearing, which was that
the defense opted not to rely on either an affidavit from any particular juror or on the affidavit of Cipriano, but rather on the affidavit of Cogan, who learned of the alleged juror misconduct only through Cipriano. Aside from the fact that such an affidavit is double hearsay, it far from constitutes the clear, strong, substantial, and incontrovertible evidence that a specific, nonspeculative impropriety occurred, sufficient to justify a post-verdict interrogation of jurors.