No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail

Eleventh Circuit agrees with trial court, after a hearing with all twelve jurors, that exposure to an unredacted copy of the Second Superseding Indictment, a book concerning the role of the jury foreperson, and limited, inadvertent media reports on the case, was harmless beyond a reasonable doubt; additionally, the trial court was properly reserved in investigating allegations that some jurors e-mailed one another before and during jury deliberations, under FRE 606(b), in United States v. Siegelman, 561 F.3d 1215 (11th Cir. March 6, 2009) (No. 07-13163)

Occasionally, allegations of juror misconduct or exposure to extraneous information are made. As a general matter, courts are reluctant “to question jurors about their deliberations, and to use one or more juror’s testimony to impeach the verdict of all,” under FRE 606(b) and case law. Siegelman, 561 F.3d at 1240. There are also few published cases involving exposure by jurors to extraneous Internet information. The Eleventh Circuit reviewed a case involving claims that some jurors were exposed to extraneous information and may have e-mailed one another during the trial.

In a publicized prosecution, then-Alabama Governor Don Siegelman and founder and former Chief Executive Officer of HealthSouth Corporation Richard Scrushy were charged and convicted for committing bribery and honest services fraud and conspiracy. The case was based on allegations that Scrushy provided $500,000 to Governor Siegelman for appointing him to the Alabama Certificate of Need Review Board, which he used to further the interests of HealthSouth. Governor Siegelman was also convicted for obstructing justice on a separate matter involving a “pay-to-play” payment. After their convictions, the defense uncovered allegations of juror misconduct concerning exposure to extraneous information and improper communications during the deliberation. The defense claimed their Sixth Amendment right to a trial by an impartial jury was violated.

After determining that the defense had made a colorable showing that some jurors were exposed to extraneous information, including information about the trial from the Internet, the court summoned all twelve jurors to a hearing. Under oath, each juror answered the following twelve questions, including follow-up questions:

  • “First question: Did anyone other than another juror try to influence your thinking about this case or your vote on the substantive counts against any Defendant?
  • Second question: Do you have any reason to believe that any juror was subjected to attempts to influence his or her thinking about the case by anyone other than another juror?
  • Third question: Did anyone other than another juror attempt to discuss the case with you during the time you were a juror in this case?
  • Fourth question: During the time that you were serving as a juror did you view any news reports or other information relating to this case or to any Defendant from sources such as newspapers, magazine, radio, or television broadcasts or Internet sites?
  • Fifth question: During the time that you were serving as a juror did you view any materials from any books, newspapers, Internet sites or any other source relating to any witness, any legal issue, or any factual issue related to this case?
  • Sixth question: During the time that you were serving as a juror di
  • d you in any way attempt to independently investigate any facts or law relating to this case?
  • Seventh question: During the time that you were serving as a juror did you overhear any conversations between persons not on the jury or between non-jurors as to any member of the jury relating to this case?
  • Eighth question: During the time that you were serving as a juror did you view or hear any extraneous information about the penalty that might be applicable to any Defendant if he was convicted of the charges in this case?
  • Ninth question: During the time that you were serving as a juror did you obtain extraneous information from any source about your role as a juror, your jury service generally, or the role of the foreperson?
  • Tenth question: During the time that you served as a juror did any other juror say or do anything that caused you to believe that he or she may have been exposed to extraneous information as I have defined it about this case from any source?
  • Eleventh question: During the time that you were serving as a juror did you view or hear any extraneous information about either the law applicable to this case or any factual material relating to this case?
  • Twelfth question: Did you bring any documents in response to the subpoena relating to extraneous information?”
Siegelman, 561 F.3d at 1246 (Exhibit A). After the evidentiary hearing, the trial court concluded some jurors were exposed during deliberations to: “(1) a copy of the Second Superseding Indictment obtained from the district court’s own website; and (2) juror information from the website concerning the foreperson’s obligation to preside over the jury’s deliberations and to give every juror a fair opportunity to express his views.” Siegelman, 561 F.3d at 1238.

Exposure to the Unredacted Second Superseding Indictment

For their deliberations, the jury received a copy of a redacted Second Superseding Indictment, which had removed a reference to defendant Siegelman in one count and defendant Scrushy in another to address an issue of mutiplicitous charging. The hearing with the jurors established that two jurors obtained and read an unredacted copy of the Second Superseding Indictment from the court’s website. Other jurors learned that the two jurors had reviewed the unredacted copy.

The circuit agreed with the trial court that any error caused by the jury’s exposure to the unredacted charges was harmless beyond a reasonable doubt and a new trial was not required. During the proceedings, the jury was “repeatedly exposed to comment by the court and all the parties on the contents of the Second Superseding Indictment. Exposure to the original indictment, including the duplicitous charging, was, therefore, innocuous and cumulative of information properly before the jury.” Siegelman, 561 F.3d at 1239. The trial court also instructed the jury that the indictment did not constitute evidence of guilty. The circuit concluded, “Based upon the district court’s investigation of this claim, its careful review of the nature, source and use of the extrinsic information in the context of the substantial evidence of defendants’ guilt, we hold that the district court did not abuse its discretion in denying defendants a new trial for this reason.” Siegelman, 561 F.3d at 1239.

Exposure to a Book About the Role of the Foreperson

The exposure to jury book about the foreperson’s obligations did not adversely impact the deliberations. The Eleventh Circuit agreed with the trial court that:

[T]he extrinsic evidence accessed from the district court’s own website by Juror 7 and mentioned by him in jury deliberations did not pertain to any substantive issue in defendants’ trial. It concerned only the process of deliberation. Furthermore, it did not contradict any instruction given by the court, was consulted and discussed for only a few moments of a more than five-day deliberation. It was discussed to encourage full participation by all the jurors. The district court concluded that the exposure of the jury to this extrinsic information was harmless to the defendants. Its factual findings that this information was unrelated to the charges or any evidentiary matter in the case, and that it was introduced by a juror, not an outside influence, are not clearly erroneous. Furthermore, the district court held, and we agree, that the government’s case was strong on the counts of conviction.
Siegelman, 561 F.3d at 1238 (citing United States v. De La Vega, 913 F.2d 861, 869-71 (11 Cir. 1990) (jury exposure to a procedural book obtained from library by foreman, entitled “What You Need to Know for Jury Duty,” which included suggestions for organizing deliberation was harmless beyond a reasonable doubt)).

Inadvertent Exposure to Limited Media Coverage

The trial court warned the jury to avoid media coverage of the case during the trial. Despite their best efforts, three jurors reported to the court that they had inadvertent, limited exposure to television reports or online headlines. As the opinion reviewed, the trial court:

found that the jurors’ testimony was especially credible since it was clear to it that the jurors felt compelled to disclose even the most incidental and inadvertent exposure to extrinsic information. Juror 22 testified that she would leave the room or mute the television when the news came on, and Jurors 7 and 40, who saw headlines, testified that they did not read the accompanying stories prior to the verdict. The court also found that there was no evidence that the jury discussed any media reports prior to the verdict.
Siegelman, 561 F.3d at 1240. The circuit agreed that the limited exposure was harmless, given the isolated and incidental nature of the exposure and substantial evidence of guilt.

Juror Deliberations

The defense also claimed their Sixth Amendment right to an impartial jury was infringed by an exchange of e-mails between some of the jurors during trial and deliberations. The trial court had questions about the authenticity of the purported e-mails, but determined that it was foreclosed from questioning the jurors about their deliberations, under FRE 606(b). The trial court noted that at most, “some of the e-mails might relate to discussion of the case prior to the submission of the case to the jury, that others might indicate limited deliberation by fewer than all the members of the jury, and that some indicate possible consideration of penalties faced by the defendants.” Siegelman, 561 F.3d at 1242. The circuit agreed with the trial court that:

Considering the totality of the circumstances, the strength of the government’s case, the length of jury deliberations, and the court’s instructions to the jury, including the instructions not to decide or discuss the case prematurely, the district court held that there was no reasonable possibility that the defendants suffered prejudice from any premature deliberations, discussion of penalty, or deliberation with fewer than all the members of the jury present.
Siegelman, 561 F.3d at 1242. The circuit further noted that defendant Siegelman was acquitted on some of the charges which suggested the verdict was without undue influence and was not decided prematurely.

Underscoring Primary Role Of Jury

The beginning of the opinion also include an emphasis on the primary role of the jury to decide the facts and the role of the reviewing court to ensure that the law was correctly applied:

This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the resources of both Alabama and the federal government. But it has arrived in this court with the “sword and buckler” of a jury verdict. The yeoman’s work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama are asked to sit through long days of often tedious and obscure testimony and pore over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury’s verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).

Furthermore, to the extent that the jury’s verdict rests upon their evaluations of the credibility of individual witnesses, and the reasonable inferences to be drawn from that testimony, we owe deference to those decisions. In our system, the jury decides what the facts are, by listening to the witnesses and making judgments about whom to believe. This they have done, and, though invited to do so, we shall not substitute our judgment for theirs. This is not to say that the judgment below is inviolable. Our duty as an appellate court is to answer properly presented questions from the parties in the case as to whether the law was correctly interpreted and applied by the district court. Juries apply the law as the judge instructs them, and the defendants’ lawyers assert that there were errors in those instructions. Defendants also contend that there were other legal mistakes committed during the course of this trial. With this in mind, we have reviewed the claims of legal error in the proceedings below, and our opinion as to their merit follows.
Siegelman, 561 F.3d at 1220 (footnotes omitted).

In sum, the allegations of juror misconduct and exposure to extrinsic evidence were serious and grounded on claims of violating the Sixth Amendment. However, the trial court conscientiously held a hearing to determine the scope of the exposure to extrinsic evidence. Based on the facts of the case, and the limited nature of the exposure, the error was harmless beyond a reasonable doubt. The circuit agreed that the trial court was adequately constrained to hold a post-verdict investigation inquiring into the jury deliberations. The case highlights the manner in which these types of challenges may be considered.


Federal Rules of Evidence