United States District Court, D. Maine
ORDER ON MOTION FOR NEW TRIAL ON REMAND
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
that a juror knowingly gave an inaccurate answer to a juror
questionnaire, the First Circuit vacated this Court's
denial of the defendants' motion for a new trial and
remanded the motion to this Court for an evidentiary hearing.
After conducting an evidentiary hearing at which the juror
and others testified, the Court affirms that the juror's
responses to the jury questionnaire in the fall of 2013 were
inaccurate and finds that the juror was not honest in her
responses. The Court also concludes that some, but not all,
of the requested information about the juror's
family's experiences with “court matters” in
the jury questionnaire would have been material to the jury
selection process. At the same time, the Court finds that the
juror was credible when she testified that she could be and
was fair and impartial as a juror in the defendants'
case. Absent any evidence of the juror's motivation
underlying her dishonesty, the Court concludes that the
defendants failed to sustain their burden of proof to
demonstrate they are entitled to a new trial.
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 the Defendants' motion for new
trial. United States v. French, 904 F.3d 111, 125
(1st Cir. 2018); Mandate as to Malcolm French (ECF
No. 790); Mandate as to Rodney Russell (ECF No.
October 4, 2018 and October 8, 2018, immediately after the
issuance of the First Circuit opinion and before the receipt
of the mandate on October 10, 2018, the Defendants moved to
recuse this Judge. Def. Malcolm French's Mot. to
Recuse Judge Woodcock (ECF No. 787); Def. Rodney
Russell's Joinder in Def. Malcolm French's Mot. to
Recuse Judge Woodcock (ECF No. 789). After briefing, on
November 5, 2018, the Court denied the motions to recuse.
Order Denying Mot. to Recuse (ECF No. 796).
The November 20, 2018 Conference of Counsel
the November 5, 2018 recusal order, on November 7, 2018, the
Court scheduled a conference of counsel for November 20,
2018. Notice of Hr'g (ECF No. 797). In
anticipation of the conference of counsel, the Government
wrote the Court on November 16, 2018. Letter from AUSAs
Joel B. Casey and F. Todd Lowell to Hon. John A. Woodcock,
Jr. (Nov. 16, 2018) (ECF No. 843). The Government
suggested that the Court engage in a “staged
process” whereby the Court contacts Juror 86, arranges
for counsel to represent her, and brings her to court for
Step 1 - the Clerk of Court corresponds with Juror
86 to serve her a summons and to notify her that the Court
would appoint counsel to represent her;
Step 2 - the Court would appoint experienced CJA
counsel to represent Juror 86;
Step 3 - Counsel for the Government and the
Defendants could provide written questions for the Court to
ask Juror 86;
Step 4 - the Court would call Juror 86 to court for
an on the record discussion, which counsel for the Government
and the Defendants could observe via video-teleconference.
The Court would consult with counsel about any additional
Step 5 - the Court Reporter would prepare a
transcript of the proceedings and the parties would file
Id. at 2.
issues arose at the conference of counsel. The Court first
discussed with counsel what kind of investigation the Court
should undertake and whether an evidentiary hearing was
necessary. The Defendants took the position that an
evidentiary hearing was necessary and that the Court should
hold a hearing at which Juror 86 was called to testify. The
Government contended that, although an evidentiary hearing
was required, the First Circuit had not directed the Court to
hold a particular type of evidentiary hearing and that
something less than having Juror 86 testify in open court
might satisfy the First Circuit directive. The Court agreed
with the Defendants, citing the First Circuit opinion that
the Court read as requiring an evidentiary hearing. See
French, 904 F.3d at 122 (“Because we are vacating
and remanding for an evidentiary hearing. .
..”) (emphasis supplied). The Court stated that front
and center in the evidentiary hearing would be the question
of Juror 86's motivation and, assuming her answer was
inaccurate, her motivation would go to whether the inaccurate
answer would have provided the basis for a challenge for
Court and counsel discussed several practical questions: (1)
how to approach Juror 86; (2) whether it was likely that
Juror 86 would invoke her Fifth Amendment rights; and (3)
whether the Court should appoint counsel to represent Juror
86. In addition, the Court asked counsel about the procedure
to be used at the evidentiary hearing: (1) whether the Court
or counsel should do the questioning; (2) whether the Court
should hold the evidentiary hearing in open court or in
chambers; (3) whether-if counsel were appointed to represent
Juror 86-her court-appointed attorney or other counsel should
perform direct examination; (4) whether the Rules of Evidence
would apply; and (5) whether the parties anticipated calling
any witnesses other than Juror 86. The Court indicated, and
counsel agreed, that any questions about actual jury
deliberations and her impressions of the evidence during
trial and jury deliberations were not proper subjects of the
conference, the Court stated to counsel that it was inclined
to appoint experienced defense counsel to represent Juror 86
for purposes of the anticipated hearing. The Defendants
objected. The Court ordered counsel to file their positions.
They did so. Letter from Att'ys Thomas F. Hallett and
Jamesa J. Drake to Hon. John A. Woodcock, Jr. (Nov. 23,
2018) (ECF No. 805); Letter from Att'y William S.
Maddox to Hon. John A. [W]oodcock, Jr. (Nov. 23, 2018)
(ECF No. 806); Letter from AUSAs Joel B. Casey and F.
Todd Lowell to Hon. John A. Woodcock, Jr. (Nov. 16,
2018) (ECF No. 807).
November 23, 2018, the Court issued an order resolving
several issues. Order on Juror Right to Counsel (ECF
No. 808). The Court reiterated its view that the First
Circuit remanded this matter to the district court to hold an
evidentiary hearing, that it would likely require the
testimony of Juror 86, that over the Defendants'
objection, it would appoint counsel to represent Juror 86,
and that after counsel had been appointed to represent Juror
86 and the Court had received notice that the matter was
ready to proceed, the Court would convene another conference
of counsel. Id. at 1-14. On the same day, November
23, 2018, the Court appointed the Federal Defender (FD) for
the District of Maine, David Beneman, to represent Juror 86.
Order Appointing Counsel (ECF No. 809).
The January 14, 2019 Conference of Counsel
FD Beneman notified the Clerk's Office that he was
prepared to proceed, on January 3, 2019, the Court scheduled
a conference of counsel for January 14, 2019. At the
conference, FD Beneman stated that his client, Juror 86, did
not take a position on an evidentiary hearing. The Court
urged counsel to stipulate to such facts as whether Juror 86
is the mother of a person convicted of various offenses and
the exact nature of the son's criminal record. The Court
suggested that at the evidentiary hearing, Juror 86 be
referred to as Juror 86 and not her actual name.
Beneman suggested that the Court consider something less than
a full public hearing, similar to what happens during voir
dire, and that the Court seal the hearing from the public.
After some discussion, the Court stated that it was not
inclined to seal the hearing because this hearing was
presumptively public under United States v. Kravetz,
706 F.3d 47 (1st Cir. 2013).
Court concluded that it was not going to ask Juror 86
questions from the bench. The Court stated that it was
inclined to allow FD Beneman to perform a direct examination
of Juror 86 and then allow counsel for the Defendants and the
Government to perform a cross-examination. FD Beneman agreed
to perform a direct examination if asked to do so by the
Court. Although the Government preferred that the Court ask
questions, it agreed that, absent questions from the bench, a
direct examination by FD Beneman would be appropriate. The
Defendants objected, saying that since they had the burden of
proof, they should be allowed to question Juror 86 first.
Court also addressed whether the Rules of Evidence would
apply to the evidentiary hearing and, after some discussion,
the parties agreed that they would not. Instead, the Court
stated that it would evaluate objections based on more
general standards of relevance, materiality, and prejudice.
At the conference, the Court scheduled the evidentiary
hearing for February 1, 2019. Notice of Hr'g
(ECF No. 816).
The January 22, 2019 Order
January 22, 2019, the Court issued an order, clarifying the
issues being presented at the February 1, 2019 evidentiary
hearing, the burden of proof, confidentiality issues,
stipulations, Juror 86's son's criminal record, jury
deliberations, and the sequencing of questioning.
Issues to be Resolved
issues to be resolved at the hearing, the Court wrote that
there were two main issues: “(1) did Juror 86 fail to
honestly answer a material question; and (2) would a correct
response have provided a basis for a challenge for
cause.” Order in Anticipation of Evid.
Hr'g (ECF No. 820). Regarding the second issue, the
Court quoted the First Circuit as stating 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. at 2 (quoting French,
904 F.3d at 116 (quoting Sampson v. United States,
724 F.3d 150, 165-66 (1st Cir. 2013)) (emphasis in
French). The Court listed the factors the First
Circuit enumerated in French. Id. at 2-3
(quoting French, 904 F.3d at 116 (quoting
Sampson, 724 F.3d at 166)). If the Court found that
Juror 86 did not lie, but was honestly mistaken, the Court
noted that the First Circuit requires a “more flagrant
showing of juror bias.” Id. at 3 (quoting
Sampson, 724 F.3d at 164 n.3).
Burden of Proof
Court concluded that the burden of proof rested on Defendants
Malcolm French and Rodney Russell. Id. (quoting
French, 904 F.3d at 117).
confidentiality, the Court rejected the Government's
position that the evidentiary hearing should be sealed.
Id. at 3-4 (citing United States v.
Kravetz, 706 F.3d 47 (1st Cir. 2013)). The Court ruled,
however, that neither Juror 86's name nor the name of her
son would be publicly available, but that the parties should
file a stipulation under seal that confirmed the person
appearing before the Court on February 1, 2019 was in fact
Juror 86. Id. at 4.
Court urged counsel to enter into as many stipulations as
possible to limit the presentation of evidence. Id.
Son's Criminal Record
counsel might wish to have the son's actual criminal
record available for examination, the Court urged counsel to
prepare an appropriately redacted document. Id.
Jury Deliberation Process
to Federal Rule of Evidence 606(b) as a guide, the Court
ruled that the juror must not be asked about jury
deliberations, juror votes, or the juror mental processes
concerning the verdict. Id. at 5.
Sequence of Questioning
Court concluded that, although permissible, it would not
conduct the initial examination of the juror. Id.
The Court further ruled that, although permissible, it would
not prohibit counsel from the defense and prosecution from
asking questions. Id. When the Court suggested that
it would ask FD Beneman to perform a direct examination of
Juror 86, Malcolm French objected, and the Court allowed him
to present any authority for his contention that the
Defendants had a right to cross-examine Juror 86 without any
direct examination. Following the January 14, 2019 conference
of counsel, Defendant French wrote the Court to confirm that
he could locate no such authority. Letter from Att'y
Thomas Hallett and Att'y Jamesa J. Drake to Hon. John A.
Woodcock, Jr. (Jan. 20, 2019) (ECF No. 817). The Court
ruled that the sequence of questioning would be: (1) FD
Beneman on direct examination; (2) cross-examination by
defense counsel for Malcolm French; (3) cross-examination by
defense counsel for Rodney Russell; (4) cross-examination by
the federal prosecutor; and (5) redirect examination and
re-cross-examination in the same order. Id. at 6-8.
The January 28, 2019 Order
Monday, January 28, 2019, in anticipation of the Friday,
February 1, 2019 evidentiary hearing, Rodney Russell moved
the Court to have the audio recording of the jury voir dire
of January 8, 2014 available for use during the evidentiary
hearing. Def. Rodney Russell's Mot. to Have the Audio
for the Voir Dire to be Available at Hr'g on Feb. 1, 2019
Consistent with Court Order dated Mar. 18, 2015 at Doc #
490 (ECF No. 824). On January 29, 2019, the Court
dismissed without prejudice Mr. Russell's motion.
Order on Def. Rodney Russell's Mot. to Have the Audio
for the Voir Dire to be Available at Hr'g on Feb. 1, 2019
Consistent with Court Order dated Mar. 18, 2015 at Doc #
490 (ECF No. 827). The Court ruled that by statute, 28
U.S.C. § 753, and under the Guide to Judiciary Policy,
the certified transcript of the jury voir is the official
record, that the backup recording is the court reporter's
personal property, and that Mr. Russell proffered no
justification for his request. Id. at 1-4.
The January 31, 2019 Order
January 30, 2019, Malcolm French moved the Court to order
that Juror 86's original questionnaire be made available
in the courtroom during the February I, 2019 evidentiary
hearing and to inform the parties when the Court received her
written questionnaire. Mot. (ECF No. 828). On
January 31, 2019, the Court granted in part and dismissed in
part the Defendant's motion. Order (ECF No.
830). With some conditions about the handling of the original
document, the Court granted the motion to make the original
questionnaire available. Id. at 1. The Court
dismissed the Defendant's request for a specific date
that the Court received the written questionnaire, but it
confirmed that the Clerk's Office received it sometime
between October 18 and October 31, 2013. Id. At the
February 1, 2019 evidentiary hearing, the parties stipulated
that the Clerk's Office received the questionnaire from
Juror 86 between October 18 and October 31, 2013 and that it
was a one-page form. Tr. of Proceedings,
Evidentiary Hr'g 4:17-5:15 (ECF No. 835)
THE FEBRUARY 1, 2019 EVIDENTIARY HEARING
with the Court's January 22, 2019 order, the parties
entered into several stipulations concerning the criminal
record of Juror 86's older son at the time Juror 86
completed the jury questionnaire and at the time of jury
1. A conviction in state court in Kennebec County, Maine for
Operating After Suspension (29-A M.R.S. § 2412-A), a
Class E misdemeanor and a conviction for Unlawful Possession
of Scheduled Drugs, namely marijuana (17-A M.R.S. §
1107), a Class E misdemeanor. Both of these crimes were
charged in one complaint and alleged a date of offense of
December 13, 2002. The defendant pleaded guilty to these
offenses on December 16, 2002, and was sentenced on the same
day to 7 days in jail and a $500 fine on the Operating After
Suspension change and 180 days, all suspended, with one year
or probation on the Unlawful Possession of Scheduled Drugs
charge. The defendant was originally charged with a third
count for Unlawful Furnishing of Scheduled Drugs, namely
marijuana (17-A M.R.S. § 1106), a Class D misdemeanor.
That charge alleged the same date of offense as the other two
charges and was dismissed on December 16, 2002. The docket
record shows that the defendant was pro se.
A. On May 21, 2003, the court partially revoked the
defendant's probation. The court imposed a sentence of 21
B. On October 21, 2003, a probation officer filed a Motion
for Probation Revocation. The defendant was incarcerated for
a period of time. The probation officer withdrew the Motion
for Probation Revocation.
2. A conviction in state court in Kennebec County, Maine for
Unlawful Possession of Scheduled Drugs, namely cocaine (17-A
M.R.S. § 1107-A(1)(C)), a Class D misdemeanor. The
defendant was originally charged with Unlawful Furnishing of
Scheduled Drugs, namely cocaine (17-A M.R.S. § 1106), a
Class C felony. The Class C charge was amended to the Class D
misdemeanor offense on December 27, 2005, and the defendant
pleaded guilty to the misdemeanor offense and was sentenced
on the misdemeanor charge on that date. The court sentenced
the defendant to 7 days in jail and a $2, 000 fine. The
docket record shows that the defendant was represented by
3. A conviction in state court in Penobscot County, Maine for
Unlawful Possession of Scheduled Drugs, namely marijuana
(17-A M.R.S. § 1107-A(F)(1)), a Class E misdemeanor. The
defendant pleaded guilty to the charge on February 2, 2011,
and was sentenced on the same day to a $750 fine. The docket
record shows that the defendant was represented by Leonard
Stip. Number One (ECF No. 829). The parties filed a
second stipulation under seal confirming Juror 86's name
as well as her older son's name. The parties stipulated
that her older son's year of birth was 1982. Stip.
Number Two (ECF No. 834) (under seal).
the evidentiary hearing, the Court admitted the following
(1) Juror 86 Exhibit 1, Jury Information Form;
(2) Juror 86 Exhibit 2, Juror Questionnaire;
(3) French Exhibit 1, Kennebec County Jail Record of Visits;
(4) French Exhibit 2, Criminal Summons;
(5) French Exhibit 7, Conditions of Probation;
(6) French Exhibit 13, Copies of checks; and
(7) French Exhibit 18, Petition request.
exhibits were admitted and sealed, but redacted versions of
the exhibits were admitted on the public record. See
Court Ex. List (ECF No. 832).
Juror 86 exhibits were copies of the questionnaires Juror 86
completed in the fall of 2013 that generated the need for the
evidentiary hearing. French Exhibit One reflects that on
October 22, 2003, Juror 86 visited her older son at the
Kennebec County Jail. French Exhibit Two is a uniform summons
and complaint for Juror 86's son for the charge of
Unlawful Trafficking in Scheduled Drugs on August 28, 2010
with an appearance date of October 6, 2010. French Exhibit
Three is a motion for probation revocation dated October 17,
2003 for failure to refrain from the use of drugs, cocaine,
and failure to report as directed in August and September
2003. French Exhibit Seven is a list of conditions of
probation for Juror 86's son following his 2002
convictions for operating after suspension and unlawful
possession. French Exhibit Thirteen consists of three
personal checks Juror 86 made out to Leonard Sharon, Esq. on
August 31, 2010, September 10, 2010 and September 16, 2010;
two in the amount of $1, 000 and one in the amount of $2,
000. Finally, French Exhibit Eighteen is a petition request
authorization in a juvenile matter for theft and forgery
dated January 23, 2001, referring the matter to a juvenile
February 1, 2019 Stipulation
outset of the evidentiary hearing, counsel stipulated that
when jurors are contacted by the Clerk's Office and
complete the questionnaires, they do not know whether the
case is going to be a civil or criminal matter. Tr.
Juror 86's Testimony
Direct Examination: Federal Defender Beneman
direct examination by FD Beneman, Juror 86 confirmed her name
and that she is the mother of the person listed in
Stipulation Two. Tr. 12:8-11. She testified that she
graduated from high school, reads and writes English, and
worked in an office environment. Id. 12:15-20. She
said she is used to reading state government forms and
papers. Id. 12:21-23.
Exhibits One and Two, Juror 86 acknowledged that the
handwriting on both forms is hers. Id. 12:24-13:17.
She said she had no recollection of having seen these forms.
Id. 13:24-14:1. Juror 86 Exhibit One is a juror
information form, containing such information as the
juror's address, marital status, age, employment,
spouse's employment, whether there are any pending
criminal charges against the juror, and whether the juror had
been previously convicted of a felony. Juror 86 Ex.
1. Juror 86 confirmed that all the information on Juror 86
Exhibit One was correct as of the fall of 2013. Tr.
Exhibit Two is the questionnaire that was the focus of the
First Circuit opinion and is the focus of the remand. Looking
at Juror Exhibit Two, Juror 86 said she could not recall
whether it came with Juror Exhibit One or separately.
Id. 14:23-15:1. Asked about the other information on
Juror Exhibit Two, Juror 86 testified that it was all
correct. Id. 15:2-22. Juror 86 agreed that she had
answered question 3(a) of the questionnaire, “N/A,
” and that in her mind, “N/A” means not
applicable. Id. 15:10-17.
Beneman referred Juror 86 to Question Three, Part A:
Please describe briefly any court matter in which you or a
close family member were involved as a plaintiff, defendant,
witness, complaining witness or a victim.
Juror 86 Ex. 2 at 1. Juror 86 described her
understanding of the terms, plaintiff, defendant, witness,
complaining witness, and victim. Id. 15:23-16:22.
Juror 86 said that she had gone to court on two occasions,
once as a witness in a matter involving her sister's
neglectful raising of her daughter and again when she was
divorced. Id. 16:23-17:18. She was married to her
current husband in 2013 and she was aware that he had gone to
court for his divorce and for an operating under the
influence charge. Id. 17:25-18:9. She stated she was
satisfied with the outcomes of both her and her husband's
involvement with the court system. Id. 17:12-18;
86 confirmed she has two sons. Id. 18:10-11. The son
whose criminal record was stipulated is the older son.
Id. 18:23-24. Regarding her younger son, she was
aware, as of the fall of 2013, that he had been to court on a
speeding charge, for possession of tobacco by a minor, and
for possession of a “small amount of pot.”
Id. 18:25-19:5. He had gone to court for these
matters on separate occasions. Id. 19:6-8. In fact,
she thought she had gone to court with him on some, perhaps
all the charges. Id. 19:9-19. She testified that she
was satisfied with the outcome of her younger son's court
cases. Id. 19:20-22.
asked about her older son. Id. 19:23-24. She
testified that she was aware that he had gone to court, but
she stated she did not know why he had done so. Id.
19:25-20:6. She admitted that she had visited her older son
at the Kennebec County Jail, but she said that she did not
know why he was in jail. Id. 20:7-16. In fact, she
testified that she did not know why he was in jail until
December 2018 when she met with FD Beneman. Id.
86 stated that she did not recall taking checks on several
occasions to the office of Leonard Sharon on her older
son's behalf. Id. 20:21-23. But she recalled
writing checks to Mr. Sharon for his assistance to her son in
some kind of a legal matter. Id. 20:24-21:5. She
said she did not know the specifics of why her son had hired
Mr. Sharon, and even as of her February 1, 2019 testimony,
she did not know the specifics. Id. 21:6-10.
Although she knew that her son hired Mr. Sharon, she
explained that her son did not have a checking account and
that she would write checks for him. Id. 21:11-15.
She said that she did not pay Mr. Sharon out of her own
funds, instead her son deposited money in her account, and
she wrote the checks based on his deposits to pay Mr. Sharon.
Id. 21:11-21. Juror 86 confirmed that the remaining
answers on page one of Juror 86 Exhibit Two were accurate.
to the second page of Juror 86 Exhibit Two, Juror 86
confirmed that she did not date the form, sign the form, or
complete any of the information on the second page.
Id. 22:20-23:7. She testified that even reviewing
the juror questionnaire did not assist her ability to
remember how she had answered Juror 86 Exhibit Two when she
filled it out. Id. 23:8-24. Juror 86 did not recall
filling out Juror 86 Exhibits One or Two and looking at the
forms did not refresh her recollection. Id.
86 recalled coming to the federal courthouse in December 2013
for a jury selection, but she was not selected in December.
Id. 24:16-22. She stated that no one asked her any
questions about Juror 86 Exhibits One and Two. Id.
January 8, 2014, Juror 86 returned to federal court for jury
selection and she did not recall anyone showing her Juror 86
Exhibits One or Two or pointing out that Juror 86 Exhibit Two
had not been completed. Id. 25:6-16. Asked whether
she recalled the magistrate judge asking the jurors whether
there was anyone on the panel who themselves personally or a
close family member has had any experiences involving
controlled substances, illegal drugs, specifically marijuana,
that would affect their ability to be impartial, she did not
recall answering the question, but she said she thought it
“did not pertain to me.” Id. 26:9-20.
She explained: “Because I stay neutral; I don't
form judgments prior to knowing the full story.”
Id. 26:21-23. She testified that the fact her sons
had resolved past matters that involved marijuana would not
have affected her impartiality. Id. 27:7-10
(“No, not at all”).
Beneman quoted another question from the magistrate judge:
“Is there anyone on the jury panel who has strong
beliefs about the legalization or continued illegality of
marijuana, either way, that would affect your ability to be
fair and impartial in rendering a verdict in this
case.” Id. 27:15-18. Juror 86 did not recall
responding to that question, but she said that she would not
have responded because she “did not have an opinion
either way.” Id. 27:15-22. Juror 86 said she
did not have opinions about marijuana in 2013 that would have
affected her ability to be fair and impartial. Id.
27:23-28:1. When posed the final, overall question from the
magistrate judge - whether there was anything that would have
interfered with her ability to be a fair and impartial juror
- Juror 86 reiterated that she felt she could be fair and
impartial and, looking back on the answers she gave, she
still believed as of February 1, 2019 that there was nothing
that made it difficult for her to be a fair and impartial
juror. Id. 28:5-29:13.
Thomas Hallett cross-examined Juror 86 on behalf of Malcolm
French. Id. 29:19-20. Mr. Hallett directly
questioned Juror 86 as to whether she had a problem with her
memory, which she denied. Id. 30:16:17. Mr. Hallett
pointed out the number of occasions where Juror 86 had
contact with the court system-her second son going to court
for marijuana, her divorce, gaining custody of her
sister's daughter, her son being in jail in 2003, her
paying Attorney Sharon in 2010-and he asked whether she
recalled thinking of any of these contacts when she responded
to Question 3(a). Id. 30:1-20. She responded that
she did not recall thinking of these matters because “I
did not think it was relevant.” Id. 31:22-23.
When pressed, she clarified that she did not think of these
instances when completing the forms. Id. 32:1-10. In
fact, she agreed that she had “no recollection”
about completing the forms. Id. 32:11-21.
86 also agreed that an honest answer to Question 3(a) would
have included every time she had gone to court. Id.
32:25-33:3. Mr. Hallett asked:
Q. Now, Mr. Beneman asked you a question if you had recalled,
when answering the voir dire questions, that both of your
sons had gone to court for marijuana, right? Do you remember
Q. And you answered that that didn't impact your
Q. So at the time you answered that question, you knew that
both of your sons had gone to court for marijuana, right?
Id. 33:14-24. Juror 86 could not recall when she
learned that her sons had gone to court for marijuana, but
she acknowledged that she knew they had done so when she
completed the jury questionnaire. Id. 33:25-34:14.
She denied, however, knowing what her older son's exact
charges had been. Id. 34:15-18. She testified that
she “remember he was pulled over, and he never talked
to me about it.” Id. 34:19-23. He told her
that he had to go to the hospital that day and this scared
her. Id. 35:1-16. She confirmed that her older son
has had a health issue but denied that his smoking marijuana
concerned her. Id. 35:18-23. She denied knowing how
much marijuana either of her sons smoked. Id.
asked about her 2003 visit to her older son at the Kennebec
County Jail. Id. 36:8-10. Although she did not know
why he was in jail, she knew it was not for murder but could
not recall if it was for theft. Id. 36:11-17. She
reiterated that she did not know why he was in jail.
Id. 36:18-20. She had never before been to jail and
found it scary. Id. 36:23-37:1. She said she was
nervous, but she was not worried about her son's physical
safety or his health. Id. 37:11-18. She spent only
“a few minutes” with her son and spoke to him
“a little.” Id. 37:22-25. Although she
did not find the situation heartbreaking, she agreed that she
was sad and upset but denied she was angry. Id.
38:5-16. She reiterated that she never asked him why he was
there and first learned why from Mr. Beneman. Id.
Hallett asked Juror 86 a series of questions about a juvenile
proceeding involving her older son that took place in 2001.
Id. 42:14-45:18; see French Ex. 18. Juror
86 recalled she reported her son to the police after he
forged one of her checks and stole from her. Id.
42:25-43:3. However, she maintained that she did not recall
what happened after that. Id. 42:23-24. Although the
paperwork indicates she was present at a juvenile proceeding,
she testified that she did not remember whether she was there
and did not recall the incident until her February 1, 2019
testimony. Id. 45:9-20.
Hallett asked Juror 86 about her recollections of the voir
dire on January 8, 2014. Id. 46:21-51:1. Juror 86
confirmed that she had very little memory of what had
occurred during jury voir dire, whether she had thought about
her sons' marijuana smoking and charges during the voir
dire, whether she had thought about her son being in jail.
Id. Juror 86 could not walk through her thought
processes that day, because she could not remember.
Hallett asked Juror 86 about her being contacted by FD
Beneman and she agreed that she was shocked and very upset.
Id. 52:20-24. She denied, however, that Attorney
Beneman had told her that she could be in trouble.
Id. 53:2-4. Knowing that she had answered the jury
questionnaire under oath, she realized that if she recalled
giving an inaccurate answer, she could get in trouble.
Cross-examination: William Maddox
questioning by Attorney Maddox, Juror 86 testified that she
recalled being in the same courtroom, but it was during the
jury trial. Id. 54:24-55:4. She did not recall
whether jury selection was conducted in the same courtroom.
Id. 55:5-7. She had some memory of being in the
courtroom during voir dire, but her memory was not precise.
Id. 55:8-25. She was not sure whether when she
participated in jury selection in December 2013, she was in
the same courtroom. Id. 56:1-5. She had no specific
recollection of jury selection in December 2013 and whether
the same judge presided at both the December 2013 and January
2014 jury selections. Id. 56:6-12.
to Juror 86 exhibit one, the juror information form, she
reiterated that she did not recall completing that form.
Id. 57:9-11. She said that if she completed the same
form today, she would probably be able to answer all the
questions right away without searching for information.
Id. 57:9-16. She had retired from state employment
on January 1, 2012. Id. 57:19-25. She had always
worked for the Department of Health and Human Services and
she worked there for thirty-six years and some months.
86 recalled that during jury voir dire, there were questions
about marijuana. Id. 58:19-59:3. She said she paid
attention to the judge's questions during voir dire and
recalled that some jurors were excused for
cause. Id. 59:7-14. She denied that she
was affected by the fact that some jurors had been excused.
confirmed that both her sons had smoked marijuana.
Id. 59:17-19. She did not know whether they or
anyone else had smoked marijuana in her home. Id.
59:20-24. She smoked marijuana in her home years and years
ago for a short time. Id. 59:25-60:3.
asked about a Maine marijuana referendum and said that she
does not have an opinion one way or the other as to whether
marijuana should be legalized. Id. 60:9-15. She
explained that whether marijuana was legalized would not
matter to her. Id. 60:9-16.
denied that anyone had ever questioned how good her memory
is. Id. 60:17-22.
Cross-examination: Todd Lowell
United States Attorney Todd Lowell questioned Juror 86. Juror
86 denied that when she responded to Question 3 on the jury
questionnaire, she was trying to hide anything. Id.
61:13-18. She denied that she deliberately gave false
information on the questionnaire. Id. 61:19-62:20.
She said she did not have a burning desire to be on the jury
or to avoid jury service. Id. She recognized that
she had a civic duty with respect to jury service and she was
willing to fulfill that duty if called. Id.
jury selection in January 2014, although she did not recall
of the details of jury selection, Juror 86 denied that she
had provided any deliberately false information in response
to the judge's questions. Id. 63:4-10. She
denied that she failed to answer a question thinking that it
would make her more or less likely to be on the jury.
Id. 63:11-14. She listened carefully to the
judge's questions, took them seriously, and answered or
responded to them accurately. Id. 63:15-25.
86 agreed that she had only limited experience with the court
system and very limited information about her sons'
experiences with the criminal justice system. Id.
64:1-5; 65:1-9. She testified that this limited information
did not affect her ability to be fair and impartial.
Id. 64:6-8. She confirmed that she did not know
either Malcolm French or Rodney Russell before the trial,
that she has no bias against people accused of crimes, that
she had no bias against people accused of drug crimes, that
she does not feel any animosity against people accused of
growing marijuana, and that she does not feel any animosity
against people accused of criminal offenses. Id.
Re-cross-examination: Thomas Hallett
again to the January 8, 2014 jury selection, Juror 86
confirmed that although she did not fully recall the
magistrate judge's questions, she recalled the oath but
not the specific questions. Id. 67:22-68:6. She also
acknowledged that she did not know what was going on in her
mind on January 8, 2014. Id. 68:10-16. She admitted
that she does not remember thinking at the time of jury
selection about her younger son smoking marijuana or being
charged with it. Id. 68:17-23. Nor does she remember
thinking about her older son being charged with marijuana
possession or the juvenile incident. Id. 68:24-69:6.
She does not recall thinking about any of the court
incidents. Id. 69:7-9. Although she had testified at
the February 1, 2019 hearing to what she would have done on
January 8, 2014, she did not recall what was going through
her mind in 2013 or 2014. Id. 69:22-25. She agreed
that she had not included any of this information in response
to Question 3 and had not been brought to sidebar during the
jury selection process and questioned by the judge.
Q. For purposes of the record here, if - - at the time you
were doing the voir dire, right - -
Q. - - that you were here, your younger son had been charged
with marijuana possession, or something having to do with
Q. And your older son had also been charged with something to
do with marijuana, right?
Q. And you did not - - and you knew that at the time.
Q. But you did not respond to the marijuana question - -
Q. - - or you don't remember; fair to say?
Q. Okay. Do you know if the marijuana charge you knew about
your older son was the one where he was hospitalized or not?
A. I'm not sure.
Q. It could have been another one?
A. It could have been.
A. I don't remember.
Re-cross-examination: William Maddox
re-cross-examination, Attorney Maddox asked about whether
Juror 86 had been asked individualized questions in December
2013 and she replied that she did not remember but did not
believe so. Id. 72:7-10. She did not recall what the
December 2013 case was about. Id. 72:11-12. She did
not know whether the judge had excluded her or whether she
was just not picked. Id. 72:13-15.
Re-cross-examination: Todd Lowell
re-cross-examination, Juror 86 agreed that she took jury
service seriously, including the obligation to be truthful
during the jury selection process. Id. 72:23-74:4.
She testified that if she believed she could not be fair and
impartial when responding to the magistrate judge's
questions, she would have responded affirmatively when asked.
Hallett called Edward, Juror 86's husband, to testify.
Id. 74:8. Attorney Hallett asked Edward about
whether he was aware that his wife's older son had been
arrested for marijuana. Id. 75:16-76:1. Edward could
not recall when the arrest took place, but he thought it
might have been around the time of Edward's father's
death. Id. 76:2-6. He was later informed, however,
that Edward's father was still alive when Juror 86's
older son was arrested. Id. 76:7-8. Edward noted
that the older son's father had died in 2007.
Id. 76:10-12. Edward stated that he was aware of the
2002-03 marijuana charge. Id. 76:10-15. Edward said
that he found out about the marijuana charge later and he
supposed that other family members knew about it.
Id. 76:22-25. He confirmed that Juror 86 knew about
it. Id. 77:1-2.
Dr. Charles Robinson's Testimony
Direct Examination: Thomas Hallett
Charles Robinson is a forensic psychologist who has testified
as an expert in a dozen states around the country.
Id. 79:18-80:8. He has been qualified as an expert
in memory. Id. 80:9-20. Dr. Robinson explained the
Four R's for creating memory: Reception (or encoding),
Retention, Retrieval, and Report. Id. 81:24-82:3.
Robinson testified that people tend to remember events when
the occurrence is emotionally colored. Id.
83:8-84:13. Dr. Robinson testified that the episode in which
Juror 86's son was involved in the juvenile proceeding
would, in his view, have been coded into Juror 86's
emotional memory because of the parental bond. Id.
84:16-85:20. Attorney Hallett asked about the marijuana
charges against both sons, Juror 86's going to court to
get custody of her sister's daughter, Juror 86's
divorce, and her husband's operating under the influence
charge, and Dr. Robinson opined that these events would have
elicited an emotional response, such as sadness, anger and
guilt. Id. 85:21-87:5.
Robinson reviewed Juror 86 Exhibit 2, the juror
questionnaire, and testified that the questionnaire, if read
and understood by a normal person, would have evoked schema,
events associated “through proximity, fear arousal, and
things like that.” Id. 87:6-88:3. He opined
that it was “highly probable” that Question 3
would have triggered memories of the earlier described court
events. Id. 88:17-21.
Further Examination: William Maddox
Robinson testified about the difference between short-term
and long-term memory. Id. He said there is no set
time when short-term memory transitions into long-term memory
because it depended upon the conditions of emotional arousal;
the higher the arousal, the more rapid the consolidation.
Id. 89:4-19. Long-term memory, however, is more
accurate than short-term memory. Id. 89:20-22. He
said that females have superior episodic memory over males.
Id. 90:2-5. He did not know whether when a parent
and child experience the same event outside the norm, the
parent or the child would have a more accurate memory.
Cross-Examination: Todd Lowell
Robinson agreed that a person would not be able to perform
the four memory formation functions if she did not read the
question or if she did not read it carefully. Id.
92:15-23. He acknowledged that he has not assessed Juror 86
and the only time he had heard her speak was during her
testimony in the courtroom. Id. 93:23-94:7. He had
not conducted any tests or examinations on her and therefore,
in his words, his opinions were a “generic analysis of
the facts in the case as they relate to social
cognition.” Id. 94:8-12.
Cross-examination: David Beneman
Beneman questioned Dr. Robinson about the fact that Juror 86
failed to complete the form, answered no questions on the
back page, and failed to sign it. Id. 98:21-22. Dr.
Robinson agreed that Juror 86's failure to complete the
back page of the questionnaire suggested a lack of awareness
on her part. Id. 98:23-25. In fact, if Juror 86
folded the questionnaire to place it in the mail, the fact
there was a second side would have been apparent to her
unless she was not paying attention. Id. 99:1-17.
Redirect Examination: Thomas Hallett
redirect, Dr. Robinson testified that based on her answers to
the questions on the first page of the questionnaire, it
seemed to him that she was paying attention. Id.
Further Examination: William Maddox
Maddox asked Dr. Robinson about the significance, if any, of
the sons' criminal records, and Dr. Robinson replied that
he thought the sons' criminal records were “not
only significant, but consequential.” Id.
101:3-11. He stated that “[u]nless this form was
essentially randomly filled out, a person would have all the
cues necessary to provide the information that's called
for, particularly in Question 3.” Id.
Re-cross-examination: Todd Lowell
Lowell asked Dr. Robinson about the fact that Juror 86 had
answered “N/A” to two of the questions.
Id. 102:2-103:19. Dr. Robinson thought that the
questionnaires' “cues were just too rich” for
her, if she read the questionnaire, not to have remembered
“those things that are targeted by these
questions.” Id. 102:19-103:9.
Lowell pointed out to Dr. Robinson that Juror 86 answered
Question Six inaccurately as well, because it asked her
“duties at your present place of employment” and
she wrote “Human Resource/Payroll, ” when she had
retired and had no “present place of employment.”
Re-cross Examination: David Beneman
Beneman pointed out that if Juror 86 had read Question 3 with
an “are” and not a “were, ” her
answer would have been accurate. Id. 105:8-21.
Re-re-direct Examination: Thomas Hallett
Hallett pointed out that Question 3(a)-“Was the outcome
satisfactory to you”-is in the past tense and suggested
that there had been an outcome. Id. 106:2-13. Also,
Mr. Hallett noted that she accurately responded to Question 5
by saying that she had retired and that she may have
interpreted Question 6 as asking about her prior occupation.
THE POSITIONS OF THE PARTIES
Malcolm French's Position
Whether Juror 86's Answer to Question 3 was
February 21, 2019, Malcolm French filed a post-hearing
memorandum. Second Supp. Mem. in Support of Def.
French's Mot. for New Trial (ECF No. 836)
(French Mem.). After recounting some of the history
of the case and the evidence presented at the February 1,
2019 hearing, Mr. French turned to “the first part of
McDonough's binary test, ” which focuses on
“whether Juror 86 failed to answer honestly one of more
material voir dire questions.” Id. at 14.
Reviewing Juror 86's February 1, 2019 testimony, Mr.
French concluded that Juror 86's response of
“N/A” to Question 3 “was not honest.”
Id. at 14-15.
Whether a Correct Answer Would Have Provided a Valid Basis