On Friday the Ninth Circuit issued guidance on what to do if a nontestifying defendant creeps out one of the jurors. The opinion, in U. S. v. Simtob, assigns some daunting homework to the trial judge -- and raises a few interesting "what ifs" for lawyers.
"I look at everybody"
Halfway through Simtob's two-day trial, one of the jurors told the judge "that Simtob had been “eyeballing” the juror and that the juror felt threatened by that conduct." The judge tried to correct the situation, outside the jury's presence:
The court then cautioned Simtob that neither he nor anyone else was allowed to intimidate anyone in the courtroom. The court further stated that, upon indication of such conduct in the future, it would take appropriate measures to deal with the situation at that time, and it again emphasized its intolerance of such behavior. When asked if the court’s instructions were clear, Simtob responded that they were, and that he had not looked at anyone in particular. “I look at everybody,” Simtob claimed. The district court did not make any inquiry of the complaining juror regarding the “eyeballing” incident.
The next morning, Simtob's lawyer asked that the allegedly "eyeballed" juror be replaced. The trial judge declined:
The district court ruled that the jury had been “repeatedly admonished not to make up its mind about any issue,” that it was “absolutely satisfied that the jury ha[d] taken those admonishments appropriately,” and that it saw “no reason to inquire further into th[e] matter . . . .”
The jurors' peace of mind
The Ninth Circuit remanded, with simple reasoning. "[E]ven indirect coercive contacts that could affect the peace of mind of the jurors" are presumed to be prejudicial in the Ninth Circuit, the court explained. "That at least one juror’s 'peace of mind' was affected is obvious from the district court’s assertion that the juror claimed that he or she felt threatened by Simtob," the court continued, and since the trial judge didn't ask that juror or the others whether they could be fair, the government could not rebut the presumption.
Any questions?
Fairly straightforward, but you might have questions. Like:
1. Is the trial court really going to bring all the jurors back? Instead of ordering a new trial, the Ninth Circuit sent the case back to the trial court with an assignment far more easily said than done:
We, therefore, vacate Simtob’s conviction and remand for the district court to recall the complaining juror and to undertake whatever inquiry it deems appropriate — whether through an in camera hearing or otherwise — to determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially. Upon remand, the district court must make findings about possible bias that the affected juror or any other juror may have harbored as a result of the alleged eyeballing incident. If the district court finds no such impairment, it can, of course, reinstate the conviction.
Seriously, we're not kidding, said an accompanying footnote:
We recognize the difficulties in recalling a juror post-verdict, such as memory deficiency, locating the juror, and inconvenience to the juror. We also acknowledge the hesitancy that courts face in “haul[ing] jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.” United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). [Simtob probably never thought he'd be thanking Reverend Moon someday.] Nonetheless, we find that there is a substantial, non-speculative ground that justifies such an action in the instant case to ensure that Simtob’s Sixth Amendment rights have not been violated.
"Difficulties" is hardly the word. A new trial might be easier.
2. Can defendants abuse this rule? If the government argued that the remand had the effect of allowing Simtob to intentionally taint his own jury with "eyeballing," the Ninth Circuit didn't discuss it. I haven't gone too far into this, but it looks like the decision would survive that argument. It seems generally true that prosecutor can't comment on, and a jury can't consider, a nontestifying defendant's demeanor, both because it's not evidence and because allowing it would bring us too close to undercutting the defendant's right not to testify. But the law is mixed, especially when the defendant's conduct is especially bad. In September 2004 Prof. Peter Tillers, of Tillers on Evidence and Inference, had three very comprehensive posts on different facets of this topic, here, here, and here.
3. What if the juror hadn't said anything? For every juror who tells the judge he's bothered by the defendant's demeanor, there are (I'm guessing, but confidently) hundreds who notice it, consider it, are swayed by it, and don't tell anyone but their fellow jurors. If you're defense counsel and a juror speaks up, you've been given a gift.
Lessons
Two takeaway points, I think:
1. Be ready. One thing many lawyers forget to review before trial is the law of Unexpected Events Involving Jurors. It's worth a section in your trial notebook listing the main reasons you can ask for relief because of some glitch with the jury, and the main case or two you'd cite on each point. Simtob's lawyer was lucky to have the overnight recess in which to remember to ask for the juror's dismissal; it will be just your luck to have the problem come up in the middle of the day, and you'll have an Instant Decision Moment.
2. Watch them. Jurors who would never tell the judge they were bothered by the defendant might "tell" you, if you watch them well enough. If you think a juror looks fearful or anxious, you can try to tone your client down, shift your arguments to address the issue, or ask the judge to talk to the juror. If you don't notice, you can't do any of those things.
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Source note:
Thanks to the Ninth Circuit Blog, published by federal defenders from the Ninth Circuit, for flagging this. In addition to good case summaries, they have useful links to blogs on other circuits, and other defense blogs. Simtob's appellate lawyer was Montana federal defender David Ness.
(Photo by Bryan Gosline at http://www.flickr.com/photos/brymo/436090582/; license details there.)
