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Univ. of South Carolina School of Law

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Thursday, November 26, 2009

Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related Case

Federal Rule of Evidence 606(b) provides 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.

As the language of this Rule makes clear, jurors cannot impeach verdicts based upon allegations that jurors engaged in threats of violence or actual violent acts against other jurors. But, as I noted in a previous post, Minnesota courts do permit jury impeachment based upon such allegations, and, as I argued in that post, I think that other courts should permit such jury impeachment as well as impeachment based upon psychological intimidation or coercion between jurors. If you disagree with me, I ask you to consider the facts of Panella v. Marshall, 2009 WL 2475007 (E.D. Cal. 2009).

In Marshall, Michael Panella was convicted of first-degree murder based upon the death of his 22 month-old child. There were several facts in Marshall, but the basics are as follows: Panella allegedly shoved the child's head into a truck window and later refused to allow his girlfriend -- the child's mother -- to use his truck to take the child to a doctor when he appeared to be sick on Thanksgiving, November 25th. The girlfriend eventually got her sister to take her son and her to the hospital, but, after waiting three hours, she left the hospital before her son was seen by a doctor, and she later lied about her son seeing a doctor. The child eventually died on November 27th. The jury subsequently convicted Panella after they rejected his defense that his girlfriend was responsible for the child's death.

Okay, so we have a defendant who certainly does not appear to be very sympathetic, but he still deserved a fair trial. And, to me, he didn't receive one based upon several forms of jury misconduct, only one of which I will highlight here. According to one juror's declaration:

Throughout the deliberations I was subjected to harassment and verbal abuse by the other jurors. Specifically, the inferences I derived from the evidence were called “stupid.” I was yelled at and intimated by other jurors and repeatedly told I should vote guilty. I was scolded for being “close-minded.” I told them that I was considering the evidence objectively. I was accused of voting “not guilty” because I had a bias against the district attorney's office.

On the third day of deliberation, I told the Foreperson I had taken enough abuse and to inform the judge that the jury could not reach a unanimous verdict. I stated I wanted to leave the jury room, "now" and that I could no longer tolerate being everyone's target. Juror No. 12 agreed we could not reach unanimous agreement. Upon telling the Foreperson I wanted to leave the room and that he should inform the judge of the impasse, the Foreperson stood between the exit door and where I was seated. I was intimidated and felt I was not free to leave the room. I began sobbing. I could not understand why the Foreperson would not inform the judge that we could not reach a unanimous verdict. One of the jurors asked for a break. After the break, I felt I could no longer endure any further mental abuse and that continued insistence that the Foreperson advise the judge of the impasse was futile. Regrettably, I decided to change my vote to “guilty”.

I believe the defendant is “not guilty” of the crimes charged. I changed my verdict only because of the Foreperson's refusal to declare a deadlocked jury and because of continuous badgering and harassment by the other jurors. I felt that if I continued to insist upon my opinion based on the evidence, that the defendant was not guilty, it would have been futile and would only subject me to further abuse by other jurors.

At the time the judge polled the jury, I did not know it was appropriate to inform the court that the verdict of “guilty” I had rendered was not freely and voluntarily rendered or that it was appropriate to inform the court of the behavior of the other jurors during the trial and during the deliberation process.

After Panella was convicted and exhausted his appeals in the California state court system, he brought a petition for writ of habeas corpus with the United States District Court for the Eastern District of California, claiming, inter alia, that he was entitled to relief based upon this juror misconduct. That court denied him relief, finding that

Petitioner's allegations of juror harassment insufficient for habeas relief. Of course, intimidation of jurors is certainly not to be condoned. Yet again, the state court carefully considered this claim and decided that Petitioner did not suffer prejudice as a result of the jurors' conduct. After the heated exchange between the jurors, the jury took a break from deliberations and came to a unanimous decision. When polled, the allegedly intimidated juror confirmed that her verdict was “guilty.” The Court sees no reason to disturb the state court's finding. Moreover, Federal Rule of Evidence 606(b) "clearly bars consideration of [a] declaration's allegation that [a] juror said that she was subjected to pressure by other jurors for being a ‘holdout for acquittal.'"...Accordingly, the Court may not even be able to consider the juror's declaration on the allegation of intimidation.

Really? Do readers agree that the Panella suffered no prejudice? Here's the way I see it. The juror submitting the declaration decided that Panella was not guilty. The only thing that prevented her from having her decision reported, and Panella getting a mistrial, was a combination of physical and psychological coercion by other jurors, including the foreperson. Sure, as the court noted, the jury reached a verdict after this heated exchange and a break. As the juror submitting a declaration noted, (s)he now felt like resistance was futile and that (s)he could no longer deal with mental abuse. And even if (s)he could, what would stop the foreperson from again blocking the juror's exit, and what would stop jurors from possibly retaliating if the juror ere allowed to leave?  

One of the main goals behind Federal Rule of Evidence 606(b) is to ensure that jurors are not subjected to harassment after trial by the losing party. It seems to me, though, that until courts allow jury impeachment based upon physical and psychological coercion, they are turning a blind eye to the harassment of jurors by other jurors.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/11/thanksgivingpanella-v-marshallslip-copy-2009-wl-2475007edcal2009.html

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