Investigating A Claim Of Jury Bias

Eighth Circuit reviews claim of jury bias that “the jurors reported that ‘words were exchanged’ with members of” the defendant’s “family as jurors left the courthouse after the first day of their deliberations” and rejects argument that the jury was not impartial under the Sixth Amendment; circuit approves of the trial court's role in acting promptly to determine the impact of any "impermissible contacts" and determining that the "incident would not affect their duty to remain impartial," in United States v. Harris-Thompson, _ F.3d _ (8th Cir. May 2, 2014) (Nos. 12-3816, 13-1021)

The Sixth Amendment provides an accused with the right to "an impartial jury of the State and district wherein the crime shall have been committed." When a claim is made concerning an improper contact with the jury during deliberations, how should the trial court respond? The Eighth Circuit was recently called upon to review the action one trial court took.

Trial Court Proceedings: Process To Determine The Impact Of Any Third Party Contact On The Jury

In the case, defendant Harris-Thompson pled guilty to being an unlawful drug user in possession of a firearm. Before sentencing, he “arranged for his girlfriend to pay an undercover police officer to kill the police chief of Mount Vernon, Iowa, because he believed that officer would testify at the upcoming sentencing hearing.” Harris-Thompson, _ F.3d at _. He was then charged with attempted obstruction of justice, attempted murder of a witness, and use of a telephone in the commission of murder for hire.

On the first day of jury deliberations in his trial, apparently “the jurors reported that ‘words were exchanged’ with members of ‘Mr. Harris-Thompson’s family’ as jurors left the courthouse....” After the trial court learned of the situation, the judge initially asked “a Deputy United States Marshal to interview the jurors this morning, find out who contacted them, which family members, what was said.” The court noted that either a mistrial may be warranted or the jury may not have been affected. More would be known following the report of the Marshal. Defense counsel did not object and noted, “It seems to me the best thing we can do is get as much information as we can get . . . before we decide what we’re going to do in terms of the jury.” Later, defense counsel reported that he had spoken with the family members of the defendant “who told him they were not present when the jury left the courthouse that evening, suggesting it was the other family the jury encountered in the parking lot.”

The trial court provided a report on the marshal’s meeting: “no words were exchanged between the jurors and the family in question, but the jurors felt uncomfortable leaving the courthouse at the same time as family members and being in the parking lot together, and one juror had worried that somebody was following her home on the interstate until that car turned in a different direction.” The trial court offered to “talk to the jury, just me and [the marshal], and allay their fears, explaining . . . that there naturally would be some interaction between jurors and members of the public, including people who are here watching trials . . . and then asking them, has this so influenced them that they feel they cannot put it aside and just concentrate on the evidence, the instructions on the law, and reach a verdict.” Defense counsel accepted this course as “the best procedure we’ve got . . . we trust the Court and [the marshal].” The court agreed with defense counsel’s request to “explain to [the jury that] they may have seen an unhappy African-American family from the other [sentencing].”

The trial court reported the meeting with the jury, noting that the court:

explained everything that [the parties] suggested,” including that the people the jury saw in the parking lot may have been part of a different family that attended an unrelated sentencing. The jurors said they had noticed Harris-Thompson taking notes during the trial; the court explained to them “that a defendant is expected to participate in the trial in every way, help his lawyer, send notes to his lawyer reminding the lawyer of things.” The court also told the jury, “nobody has addresses for them except the lawyers, and nobody even knows what hometown they’re from.” After this discussion, the court reported that the jurors all said that there’s no problem. They could disregard anything that happened last night, focus on the job at hand, which is to make decisions in the case we just tried. No one said they were unable to do that, and I kind of probed it a couple different ways, and they’re fine. . . . [I]t was just a very positive meeting, in my opinion.

Harris-Thompson, _ F.3d at _.

Defense counsel then moved for a mistrial based on fear instilled in the jury which could no longer be fair. No objection was made over the procedure used. The trial court denied the motion for a mistrial based on its discussions with the jury. Later, the defendant filed a supplemental pro se motion for a new trial, contending that the trial court’s “unrecorded contact with the jury during deliberations” violated his rights under the Fifth and Sixth Amendments. This motion was also denied. After the jury convicted the defendant, he appealed claiming that he did not receive a fair trial based on jury bias.

Eighth Circuit Review: Prompt Review To Assess Impact

The Eighth Circuit noted that the right to an impartial jury under the Sixth Amendment “means trial by a jury that is not tainted or influenced by third-party communication, contact, or tampering.” Harris-Thompson, _ F.3d at _ (citing United States v. Behler, 14 F.3d 1264, 1268 (8th Cir.) (noting after a reasonable basis suggesting improper influence, the trial court “should determine the circumstances, the impact [of the improper contact] upon the juror[s], and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate”), cert. denied, 513 U.S. 960 (1994) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)).

The circuit found that the trial court reacted quickly and fairly:

Here, the court promptly investigated the parking lot incident, with the help of defense counsel’s independent inquiry. The court determined there had been no impermissible contacts between the jurors and Harris-Thompson’s family, and so advised the jury. It questioned the jurors and received assurances that the parking lot incident would not affect their duty to remain impartial. Carefully weighing the gravity of the alleged misconduct and the likelihood that it had occurred, the court concluded the jurors’ concerns had been alleviated and would not prejudice their ability
to render an unbiased decision.

Harris-Thompson, _ F.3d at _.

The circuit found unpersuasive the defendant’s challenge that the trial court twice engaged in improper ex parte contact with the jury. There was no right for the defendant to be present during the investigative phase when the marshal initially met with the jury. The defendant also waived any right to be present when the trial court met with the jury by agreeing to the proposed process. Harris-Thompson, _ F.3d at _ (citing United States v. Gagnon, 470 U.S. 522, 529 (1985) (failure to invoke the Fed. R. Crim. P. 43 right to be present “constitutes a valid waiver of that right”); Behler, 14 F.3d at 1268 (while ex parte communications should be avoided, “ex parte hearings have been upheld where the circumstances warrant and fundamental fairness is not sacrificed”); United States v. Brown, 923 F.2d 109, 112 (8th Cir.) (noting a right to be present at an ex parte discussion the trial judge and jurors applies only when his presence is “required to ensure fundamental fairness or a reasonably substantial opportunity to defend against the charge”; concluding that the defendant’s presence “would have added nothing nor gained anything by attending [the district court’s interview], and [his] presence could have been detrimental”), cert. denied, 502 U.S. 833 (1991)).

Under the circumstances, the ex parte contact was warranted:

[T]he timing of the possible improper third-party contact gave the court no choice but to investigate after deliberations began. The parties then agreed that an ex parte interview was the best way to proceed; the court gave the parties an immediate full report of its interview, on the record; neither defense counsel nor Harris-Thompson requested an additional inquiry of the jurors with the parties present; and the additional questions raised by the jury and addressed by the district court related to their initial personal security concerns. In these circumstances, there was no procedural plain error.

Harris-Thompson, _ F.3d at _.

Finally, the circuit rejected the defendant’s claim raised for the first time on appeal that the trial court should have held a hearing before denying his motion for a mistrial. Harris-Thompson, _ F.3d at _ (citing United States v. White Bull, 646 F.3d 1082, 1095 (8th Cir. 2011) (“A district court is not obligated to conduct an evidentiary hearing each time there is a possibility of juror bias.”)). There was no plain error particularly where defense counsel had agreed with the suggested process to review the claim of an improper contact with the jury.

Conclusion

The Harris-Thompson case provides an example of how a trial court may consider a claim that there has been improper contact with the jurors and the issues that may come up. The trial court quickly addressed the issue and proposed options to assess the impact of any third party contact. The trial court allowed the parties to comment. When no objection was made to the proposed process, the trial court reported back its conclusion that the contact did not affect the jury's ability to decide the case fairly. The case also points out the obligation on the complaining party to raise a timely objection so it may be fully considered.

For another case addressing this issue, consider The Need To Make A Record To Justify Inquiry Into Juror Exposure To External Matters.

______________________________

Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence
PDF