As the government was unable to rebut the presumption of prejudice that arose from discovery that during deliberations a juror made an unauthorized Wikipedia search for the definition of an element of the charged offense (the word "sponsor" for an offense prohibiting one from "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture"), the conviction was reversed and remanded for retrial, in United States v Lawson, 677 F.3d 629 (4th Cir. April 20, 2012) (Nos. 10–4831, 10–4846, 10–4841, 10–4870, 10–4845, 10–4882)
This is the third consecutive blog entry regarding a recent Fourth Circuit case examining the scope and application of the presumption of prejudice that can arise from juror misconduct at trial. Monday's blog described the split among the circuits about the presumption of prejudice that can arise from a finding of juror misconduct; Tuesday's entry examined whether the misconduct was of sufficient magnitude to trigger a presumption of prejudice; today's essay examines the Fourth Circuit's application of a five-factor test to determine that the government was unable to rebut the presumption of prejudice.
In the case, defendant Lawson and other co-defendants were convicted of promoting animal fights in violation of the Animal Welfare Act. After conviction, the court determined that "a juror's misconduct in performing unauthorized research of the definition of an element of the offense" on Wikipedia.org (as to the meaning of the word "sponsor" in connection with an offense prohibiting one from "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture") gave rise to a presumption of prejudice which the government had the burden to rebut and the trial court erred in concluding that the government had made a sufficient rebuttal of the presumption. Lawson, 677 F.3d at 651.
In applying the presumption of prejudice, the circuit noted that the government failed in its rebuttal. The test applied by the Circuit was derived from the Tenth Circuit case of Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919, 924 (10th Cir. 1992). There were five factors which the Fourth Circuit found critical:
- The importance of the word or phrase being defined to the resolution of the case.
- The extent to which the dictionary definition differs from the jury instructions or from the proper legal definition.
- The extent to which the jury discussed and emphasized the definition.
- The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.
- Any other factors that relate to a determination of prejudice.
The circuit's made a detailed and careful application of each of the five Mayhue factors and concluded that each weighed in "favor" of finding that the government had failed to dissipate the presumption of prejudice. As the circuit stated in reaching this conclusion:
In balancing the Mayhue factors ... we conclude as a matter of law that the government has failed to rebut the Remmer presumption of prejudice. The first factor, the importance of the term at issue, weighs strongly in favor of Lawson. The second, third, and fourth factors either present close questions or weigh in Lawson’s favor due to the evidentiary and analytical uncertainties present in this case. The fifth factor weighs in Lawson’s favor.Lawson, 677 F.3d at 651 (citing United States v. Vasquez-Ruiz, 502 F.3d 700, 705 (7th Cir. 2007); United States v. Cheek, 94 F.3d 136, 142 (4th Cir. 1996))).
These conclusions reflect the fact that there remain many unresolved questions in this case due to the unreliability and ever-changing nature of Wikipedia, to Juror 177’s failure to retain a copy of the printout containing the entry he examined, to the government’s failure to establish whether the entry could be "retraced," to the differences between Juror 177’s recollection of the events at issue and the recollections of his fellow jurors, and to the constraints imposed by Fed. R. Evid. 606(b). We do not know what the Wikipedia entry actually said, how it may have differed from a traditional legal definition of the term "sponsor," whether Juror 177 used the entry in arriving at his decision, and under what theory of liability the jury convicted the defendants. In short, there are many uncertainties here, and, under Remmer, "it is the prosecution" that "bears the risk of uncertainty." Therefore, because the government has a "heavy obligation" to rebut the presumption of prejudice by showing that "there is no reasonable possibility that the verdict was affected by the" external influence, the government’s showing in this case, as a matter of law, does not satisfy that obligation.
The Fourth Circuit also identified the role FRE 606(b) can play in the application of the Mayhue factors. The circuit rejected the government's harmlessness argument, which was based on the "testimony of Juror 185, who stated that any words researched by Juror 177 became 'null and void' because the jury 'ended up ... using a different section of the jury instruction ... for the section that we were deliberating on.... [We] didn't need that word.'" Because FRE 606(b) "prohibits testimony concerning jurors' thought processes during deliberations. The government's reliance on Juror 185's testimony, which discusses the basis on which the jury rested its decision, goes far beyond the bounds of the limited exceptions provided in Rule 606(b)." Accordingly, this was important in assessing the first Mayhue factor, which the Circuit "resolve[d] in Lawson's favor" since accepting it "would undermine the very purpose of Rule 606(b)." Lawson, 677 F.3d at 647 (citing Cheek, 94 F.3d at 143 (“Rule 606(b) prohibits all inquiry into a juror's mental process in connection with the verdict.”).