Sunday, January 19, 2014
A Missouri judge recently granted a new trial to a civil plaintiff who produced post-verdict evidence of juror misconduct. The case, Amrine v. Ossman (Cole County Circuit Court), concerns a malpractice allegation brought by a former death row inmate who was freed in 2003 after the Supreme Court of Missouri found "clear and convincing evidence of actual innocence that undermines confidence" in Amrine's guilt. Now Amrine alleges that counsel at his murder case committed malpratice. In 2012, a jury found for Ossman, the retired public defender being sued by his former client. Then Amrine's lawyers moved for a new trial, alleging (among other things) that a white juror had said during deliberations that he would not give Amrine anything and that he referred to Amrine (who is black) by a racial slur. Counsel for Ossman offered evidence in rebuttal that the alleged racist remark was never made. Finding the denials by the alleged racist juror not credible, and deeming that the racist remark showed "unrestrained racial bias," the judge ordered a new trial, which is set for February 2014.
Because the trial took place in Missouri state court, the plaintiff's post-verdict evidence of juror racial bias was admissible under the rule of Fleshner v. Pepose Vision Institute, 304 S.W. 3d 81 (Mo. 2010). Under the federal rules (and similar ones adopted in most states), the admissibility would not be so clear.
Lawyers familiar with Federal Rule of Evidence 606(b) know just how difficult it is to attack a jury verdict with evidence of juror misconduct. The rule serves to exclude most evidence of juror behavior offered "during an inquiry into the validity of a verdict," including evidence that, had it been presented before the jury reached a verdict, would surely have been grounds for a mistrial. Tanner v. United States, 483 U.S. 107 (1987), shows the power of the rule. The Supreme Court upheld a guilty verdict despite the trial judge's decision to reject evidence (offered after jurors approached defense counsel before sentencing) that jurors were drunk during trial and deliberations, used and sold drugs during trial, and slept during trial. The majority reasoned that although Tanner clearly did not receive the kind of jury anticipated by the Sixth Amendment's guarantee of trial by jury, the proposed "cure" (i.e., post-verdict testimony by jurors about conduct relevant to deliberations) would be worse than the "disease" (i.e., Tanner being convicted by a jury treating the trial as "one big party"). The Court suggested that voir dire, attention to jury misconduct during trial (before return of verdict), and non-juror evidence of misconduct (e.g., testimony from a waiter who sold booze to jurors during lunch breaks) would normally be enough to prevent this sort of problem.
Like with so many rules, the devil of Rule 606(b) is in the details. Sometimes jurors may indeed testify about their deliberative process at a hearing called to attack their verdict. For example, jurors may describe bribes, coercion, and improper consultations of extraneous evidence (e.g., a baliff tells the jury about a defendant's prior record, or a juror reads a prohibited newspaper). But they generally cannot describe themselves or fellow jurors goofing off, voting for improper reasons, or considering evidence the judge ruled inadmissible.
So what about evidence of racist (or ethnic, or religious, or other sorts of) bias infecting deliberations? The answer is not clear from the language of Rule 606(b). The rule states that "a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment." A racist statement surely qualifies.
But what of the exceptions? Otherwise prohibited testimony is allowed if it concerns
"whether: (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form."
Is a juror's racism, expressed during deliberations, "extraneous prejudicial information [that] was improperly brought to the jury’s attention," and therefore the proper subject of a post-verdict evidentiary hearing? Or is it more like a mistrust of police officers, or doctors, or insurance companies---or boozing at lunch---which might justify a mistrial if uncovered before verdict but afterward is ignored to preserve "finality" and avoid harassment of jurors by disappointed parties and their lawyers? Or does it perhaps not fall into any of the enumerated exceptions but nonetheless must be admitted because of constitutional guarantees of due process or equal protection?
In Fleshner, the Supreme Court of Missouri held "that if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law." Other jurisdictions have split on the issue. See, e.g., United States v. Benally, 546 F.3d 1230, 1234-40 (10th Cir. 2008) (applying Rule 606(b) strictly to reject post-verdict evidence of bias against American Indians); United States v. Villar, 586 F.3d 76, 87 (1st Cir. 2009) (opposite result). In her 2011 article "12 Racist Men: Post-Verdict Evidence of Juror Bias," Professor Jessica West argues that evidence of juror bias should be admissible despite the general policy (enshrined in Federal Rule of Evidence 606(b) and similar state rules) that severly limits post-verdict examinations of just what moved the jury to reach its verdict. Colin Miller (of this blog) reached the same conclusion in a 2009 article about post-verdict evidence presented by criminal defendants. Are they right? Does Amrine v. Ossman shed any light?