In the age of smartphones and 24/7 access to media, jurors who conduct outside research are a hot topic in the legal community. And if you’re defense counsel for the notorious Joaquín Guzmán, aka “El Chapo,” it is the hot topic.
After a three-month federal jury trial in Brooklyn, New York, El Chapo was recently convicted of drug trafficking, weapons violations, and operating an ongoing criminal enterprise. He now faces a life sentence without the possibility of parole.
It’s not uncommon for criminal defendants in high-stakes jury trials to take advantage of every available legal remedy on appeal, but the El Chapo case has something most cases do not: admissions of gross jury misconduct. From an actual juror.
‘We Broke That Rule A Bunch of Times’
Months before jury selection began, U.S. District Judge Brian Cogan ruled that jurors would remain anonymous and would be “partially sequestered.” During trial, they were transported to and from the courthouse each day by U.S. Marshalls and were “hidden from the public” during the day. But jurors were free to sleep in their own beds each night. And, apparently, free to troll the internet in the privacy of their homes.
According to an article in Vice News, jurors routinely disregarded the judge’s instructions to stay off social media and avoid any news coverage of the trial. When I read that, it literally made my jaw drop. In my 20+ years working as a jury consultant, I have never encountered such an egregious and blatant display of disrespect for a court, a judge, or the judicial process.
The juror – who Vice allowed to remain anonymous and gender-neutral – contacted the media outlet the day after the verdict. Call me a cynic, but the article truly made me question whether the interviewed juror was gunning for a book and movie rights, or whether he/she was just being honest (and, with luck, felt bad about his/her behavior).
Here are a few salient quotes that gave me pause. And a bit of heartburn.
You know how we were told we can’t look at the media during the trial? Well, we did.”
“The judge said, ‘You can’t talk about the case among each other,’ but we broke that rule a bunch of times.”
The juror even admitted that he/she instructed the other jurors to “keep a straight face” if the judge came into the jury room and asked if any of the jurors had seen any news coverage. “We all denied it, obviously.”
W-O-W. This juror not only slapped the judicial process and the judge’s instructions smack in the face, but he/she also essentially encouraged fellow jurors to lie to a federal judge.
Jurors are routinely instructed to stay off social media and Judge Cogan reportedly gave daily admonitions and reminders to jurors to avoid any press. But the question I have is when, exactly, did Judge Cogan give the initial instruction to the jury panel and how was it delivered? Was it simply a long list of rules, or did he explain the logic behind the rules?
Tip for litigators: (1) Consider asking the judge to swear in the panel members as soon as they are all selected. That way, you have stronger grounds for allegations of jury misconduct should jurors engage in any shenanigans between jury selection and Opening Statements. (2) Encourage the judge to explain the “why” behind the admonition. Otherwise, it’s just one more rule to follow. The more jurors buy into the importance of a rule, the more likely they are to actually follow it.
The anonymous juror wasn’t done dishing, though:
[Some jurors said], ‘I don’t care what you decide, guilty or not guilty. I disagree with whatever you want to do. I’m not going to participate because I’ve been in so many juries that at this point I don’t care.’”
I mean, never say never, but (knock on wood) I have never conducted any post-trial interview with any juror who ever suggested that another jury member simply didn’t care about the outcome. And I’ve done a number of trials that lasted more than a month (although, to be fair, none involving the leader of an international drug cartel).
Perhaps the comment was made in sheer frustration over an issue that had been beaten to death. Or, perhaps the interviewee was exaggerating to make things more exciting for the media? Either way, regardless of this quote, I still believe the vast majority of jurors try their hardest to participate, listen, and render a verdict based on the evidence presented and thoughtful deliberations.
The anonymous juror also implied he/she was thinking about more than justice during the trial:
It’s a once-in-a-lifetime thing. This is the case of the century. Do I want to live it… or do I want to watch it on the screen?”
High-profile cases always come with the risk of seating rogue jurors: jurors who play the system in an effort to be seated. I can’t help but wonder if this juror fits that bill, and jurors with an agenda can be hard to identify during voir dire.
Voir Dire Red Flags
During jury selection in the El Chapo case, a large number of prospective jurors were reported as crying, having anxiety attacks, or telling the court they feared for their lives. I have zero evidence to support this occurred in the El Chapo trial, but in any high-profile case, if a juror says he or she wants to serve? That’s a huge red flag. Huge.
Finally, the Vice News reporter asked the juror why he/she wasn’t honest with the judge when asked whether jurors were exposed to media, and the juror responded:
I thought we would get arrested,” the juror said. “I thought they were going to hold me in contempt.… I didn’t want to say anything or rat out my fellow jurors. I didn’t want to be that person. I just kept it to myself, and I just kept on looking at your Twitter feed.”
Well, guess what, Juror? You are now that person.
Judge Cogan gave the defense attorneys until March 28th to file their motion for a new trial, which has become a much stronger motion since the mystery juror’s interview. It should be interesting to hear what kind of inquiries – if any – Judge Cogan makes to individual jurors regarding the alleged misconduct. And what they tell him.
Contempt of court, anyone?