If You Can’t Bribe ‘Em, Blame ‘Em
I guess that’s Scrushelman’s new strategy:
Attorneys for former HealthSouth Corp. chief executive Richard Scrushy and former Gov. Don Siegelman want a new trial, saying that jurors who convicted them discussed the case through e-mails during the trial and another reported feeling pressured to vote guilty.
The Government predictably responds:
Prosecutor Steve Feaga said Monday he had not reviewed the entire motion, but based on what he knew about it, he was not concerned.
“It sounds very much like desperate pleadings filed by desperate men with unlimited resources trying to avoid the consequences of their criminal activity,” Feaga said. “I’m confident that there was no error committed during the trial that would entitle them to a new trial or any other appellate relief.”
According to the story, the claims are three. First, one juror says he voted guilty due to the combined pressure of the other jurors, the judge’s instructions, and the general costs and hassles of jury duty. Second, at least two other jurors discussed the case between themselves but while outside of formal deliberations. Three, while the jury was taking a break from deliberations, yet another juror allegedly saw a news report about the trial.
If that’s all there is to the argument, I’m gonna guess it won’t work. The applicable rule is 606(b) of the Federal Rules of Evidence:
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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
That’s a lawyer’s way of saying that what happens in the jury room stays in the jury room. The purpose of the rule is to encourage full and frank debate among the jurors. We do not want the jurors worried about someone later using their statements against them. So no juror is allowed to testify – or submit an affidavit – about anything that happened during the deliberations.
That ought to sink the first claim. The juror wants to testify about what went on in the jury room and how that pressured him to vote guilty. That is exactly what the rule prohibits. The judge should not even consider this testimony.
The next two claims are different.
Arguably, the rule would not apply to the second claim, because when the two jurors talked to each other it was not “during the course of the jury’s deliberations.” It was in that general time period, but not when the jury was formally assembled. If this argument is correct, then they could testify to the substance of the conversations.
As for the third claim, the rule makes an exception for extraneous prejudicial information. For instance, suppose a bailiff told the jurors that Scrushelman would never go to jail if they found him guilty, and if he did, he had good attorneys to get him a new trial on appeal. That is extraneous information: information not obtained through the trial. And it is prejudicial as well: it would encourage a guilty verdict. So the jurors could testify about this and its affect on them. The newspaper – as something considered by a juror but not presented during the trial – would fit the exception.
However, for both the second and third claims, Scrushelman still has to show prejudice. I don’t see it for the extraneous discussion. It looks like all the jurors did is what jurors are supposed to do: Deliberate. There is nothing in the story about any dirty dealings or agreements to pressure anyone else. As for the paper, it depends on what the story is. If it suggested Scrushelman was guilty, or the evidence was powerful, or that the jurors would be idiots not to convict, then he may have a fighting chance. But even then, if only one juror saw it, dollars to donuts says the verdict stands.