United States District Court, D. Maine
ORDER ON JUROR RIGHT TO COUNSEL
JOHN
A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.
Following
the Court of Appeals for the First Circuit's remand to
this Court for an evidentiary hearing concerning Juror
86's responses to a jury questionnaire and her motivation
behind those responses, the Court, over the objection of the
Defendants, is going to appoint counsel to represent Juror
86. The Court concludes that based on the record now before
it, including the appellate court's opinion, there is
some potential that Juror 86 deliberately lied during the
voir dire process and for that reason alone, she should be
provided with counsel. In addition, the Court favors the
appointment of counsel for practical reasons.
I.
BACKGROUND
On
October 10, 2018, the Court of Appeals for the First Circuit
issued its mandate, remanding the Malcolm French and Rodney
Russell cases to this Court “for further
proceedings” on their motion for new trial. United
States v. French, 904 F.3d 111 (1st Cir. 2018). On
November 5, 2018, the Court denied the Defendants' motion
for recusal. United States v. French, No.
1:12-cr-00160-JAW, 2018 U.S. Dist. LEXIS 188659 (D. Me. Nov.
5, 2018). On November 20, 2018, the Court held a conference
of counsel to determine how best to respond to the First
Circuit's remand. Min. Entry (ECF No. 802).
II.
LEGAL ISSUES
A.
Remanded for an Evidentiary Hearing
The
First Circuit in general remanded the case “to
investigate the claim, ” indicating that “[t]he
type of investigation the district court chooses to conduct
is within the district court's discretion; it may hold a
formal evidentiary hearing, but depending on the
circumstances, such a hearing may not be required.”
French, 904 F.3d at 117. Significantly, the
French Court also wrote:
Because we are vacating and remanding for an evidentiary
hearing concerning the possible bias of Juror 86, we
could defer review of the drug quantity issue . . . .
Id. at 122 (emphasis supplied). This Court views the
First Circuit's language as requiring on remand that the
Court hold an evidentiary hearing. Under the law, an
evidentiary hearing is a hearing “to try issues of
fact.” Townsend v. Sain, 372 U.S. 293, 309
(1963). The term ‘evidentiary hearing' defines
itself. A hearing in a court context, is a “judicial
session, usu[ally] open to the public, held for the purpose
of deciding issues of fact or of law, sometimes with
witnesses testifying.” Bryan A. Garner, Black's Law
Dictionary at 836 (10th ed. 2014). The First Circuit's
use of adjective, “evidentiary, ” emphasizes that
the hearing on remand must include the taking of evidence,
and under basic concepts of due process, an evidentiary
hearing includes placing witnesses under oath and allowing
cross-examination. Id. (“evidentiary
hearing” means “[a] hearing at which evidence is
presented, as opposed to a hearing at which only legal
argument is presented”).
In
United States v. Sampson, 724 F.3d 150 (1st Cir.
2013), the district court convened what the First Circuit
described as an “evidentiary hearing” to resolve
a question of juror misconduct. Id. at 156. The
Sampson Court refers to the juror's presentation
at the evidentiary hearing as testimony. Id. at 163
(“Juror C testified”). Furthermore, the district
court allowed defense counsel to cross-examine the juror.
Id. (“When defense counsel attempted to probe
her lies about P, she resisted that line of inquiry”).
Although,
as the First Circuit noted, in many cases of juror misconduct
it is appropriate for the district court to convene something
less than an evidentiary hearing to investigate claims of
juror misconduct, French, 904 F.3d at 117, the Court
concludes, consistent with its interpretation of the First
Circuit directive in this case, that it should convene an
evidentiary hearing to resolve the issue of juror misconduct
on remand.
B.
The Need for the Testimony of Juror 86
The
next question is whether the evidentiary hearing that the
First Circuit ordered contemplates the sworn testimony of
Juror 86. On this issue, the First Circuit observed that when
a party claims that a juror failed to respond accurately to a
question asked of prospective jurors prior to selection as a
juror, “a party must first demonstrate that a juror
failed to answer honestly a material question on voir
dire, and then further show that a correct response
would have provided a valid basis for a challenge for
cause.” French, 904 F.3d at 116 (quoting
McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556 (1984) (emphasis in McDonough)). The
French Court observed that “[t]he outcome of
this inquiry depends on whether a reasonable judge, armed
with the information that the dishonest juror failed to
disclose and the reason behind the juror's
dishonesty, would [have struck the juror for
cause].” Id. (quoting Sampson, 724
F.2d at 165-66 (emphasis in French)). The First
Circuit wrote that “the court may consider factors
including but not limited to ‘the juror's
interpersonal relationships; the juror's ability to
separate her emotions from her duties; the similarity between
the juror's experiences and important facts presented at
trial; the scope and severity of the juror's dishonesty;
and the juror's motive for lying.'”
Id. (quoting Sampson, 724 F.3d at 166). The
First Circuit emphasized that “the ultimate inquiry
under Sampson requires that the court consider
‘the reason behind the juror's
dishonesty.'” Id. at 118 (quoting
Sampson, 165-55).
Although
the Court remains open to the suggestions of the parties as
to how to resolve the issue of Juror 86's motivation
without calling her as a witness, it anticipates that her
testimony will be the central focus of the evidentiary
hearing on remand. Id. at 118 (“The only way
to tell if the passage of time would have erased Juror
86's memory ...