Fabio Evelio Gomez v. David Shinn, et al.
No. CV-21-01529-PHX-MTL
February 28, 2022
Michael T. Liburdi, United States District Judge
WO; DEATH PENALTY CASE
WO
ORDER
Before the Court are Respondents’ motions to bar Petitioner Fabio Evelio Gomez‘s defense team from contacting any juror in this case absent leave of Court
I. BACKGROUND
In 2001, a jury convicted Gomez of first-degree murder, kidnapping, and sexual assault based on Gomez‘s attack on a neighbor at his apartment complex. State v. Gomez (Gomez II), 293 P.3d 495, 497 (Ariz. 2012). Before he was sentenced, the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584 (2002), which required aggravating factors in capital cases to be found by a jury. Id. at 497-98. The trial court thus reset the matter for a jury sentencing. Id. A second jury found that the murder was especially cruel and depraved under
After unsuccessfully pursuing post-conviction relief in state court, Gomez filed his intent to seek habeas relief from this Court. (Doc. 1.) The Court appointed counsel and ordered Gomez to file his habeas petition by July 8, 2022. (Docs. 5, 12.) Respondents subsequently filed the pending motions. (Docs. 14, 15.)
II. DISCUSSION
A. Juror Contact
Respondents ask the Court to prohibit Gomez‘s defense team from contacting “trial and resentencing jurors absent . . . leave of Court based on a showing of good cause to believe that juror misconduct occurred.” (Doc. 14 at 4.) They argue that this bar will further the policy behind
Judges of this District have taken different approaches to these requests. Compare Ellison v. Ryan, No. CV-16-08303-PCT-DLR, 2017 WL 1491608, at *2-3 (D. Ariz. Apr. 26, 2017) (finding no authority that requires a showing of “good cause” to contact jurors), with Reeves v. Shinn, No. CV-21-1183-PHX-DWL, 2021 WL 5771151, at *3 (D. Ariz. Dec. 6, 2021) (finding ample case law confirming that district courts may grant such requests and that there are “powerful reasons why district courts should exercise their discretion in favor of such requests“), and Harrod v. Ryan, No. CV-16-02011-PHX-GMS, 2016 WL 6082109, at *3 (D. Ariz. Oct. 18, 2016) (granting request to the extent that it prevented petitioner from asking jurors about matters not admissible in evidence, but not about “extraneous influences on
The Supreme Court has noted that “very substantial concerns support the protection of jury deliberations from intrusive inquiry.” Tanner v. United States, 483 U.S. 107, 127 (1987). In Tanner, the Court explained that post-verdict “investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior” but found that “[it] is not at all clear . . . that the jury system could survive such efforts to perfect it.” 483 U.S. at 120. The Court noted that claims “raised for the first time days, weeks, or months after the verdict [would] seriously disrupt the finality of the process.” Id. (citing Gov‘t of the Virgin Is. v. Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985)). Moreover, an onslaught of post-verdict claims against jurors would undercut “full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community‘s trust in a system that relies on the decisions of laypeople. . . .” Id. at 120-21 (citing Note, Public Disclosure of Jury Deliberations, 96 Harv. L. Rev. 886, 888-92 (1983)); see also McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (noting that public investigation of juror deliberations would cause “the destruction of all frankness and freedom of discussion and conference“).
Courts “have long imposed restrictions on lawyers seeking access to jurors” following a verdict. Mitchell v. United States, 958 F.3d 775, 787 (9th Cir. 2020). These restrictions “(1) encourage freedom of discussion in the jury room; (2) reduce the number of meritless post-trial motions; (3) increase the finality of verdicts; and (4) further [
That is not to say that
Absent those exceptions, the Ninth Circuit “condemn[s] the practice of interviewing jurors on the course of their deliberations in the jury room.” Bryson v. United States, 238 F.2d 657, 665 (9th Cir. 1956); see also N. Pac. Ry. Co. v. Mely, 219 F.2d 199, 202 (9th Cir. 1954) (holding this practice to be “improper and unethical“); Harrod, 2016 WL 6082109, at *2 (citing Mely, 219 F.2d at 202; Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980); Com. v. Moore, 52 N.E.3d 126 (Mass. 2016)) (stating that “investigation directed at discovering the inadmissible considerations of motives and influences that led to a juror‘s verdict . . . is inappropriate and unethical“).
Courts of this Circuit, in fact, must “protect jurors from the annoyance and harassment of such conduct.” Bryson, 238 F.2d at 665. This Circuit therefore discourages
Thus, this Court does not abuse its discretion or violate the Constitution by barring post-verdict juror interviews without a showing of good cause. Mitchell, 958 F.3d at 787 (citing United States v. Eldred, 588 F.2d 746, 752 (9th Cir. 1978); Smith, 457 F.2d at 1100). Other Circuits take this approach. See United States v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007); United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985); United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976). Although the Ninth Circuit has “not joined other courts in” banning evidence from post-verdict juror interviews without leave of court, it “believe[s] the better practice is” to seek such leave. Hard, 812 F.2d at 485 & n.3 (citing Maldonado v. Mo. Pac. Ry. Co., 798 F.2d 764, 769 (5th Cir. 1986); United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985)).
Further, “very cogent reasons,” beyond those expressed in Tanner, support a requirement that good cause be shown before a juror may be contacted. These reasons include “protecting the jury from post-verdict misconduct and the courts from time-consuming and futile proceedings; reducing the chances and temptations for tampering with the jury; and increasing the certainty of” verdicts. See Wilkerson v. Amco Corp., 703 F.2d 184, 185-86 (5th Cir. 1983) (quoting O‘Rear v. Fruehauf Corp., 554 F.2d 1304, 1310 n. 4. (5th Cir. 1977)) (internal quotations omitted) (noting civil verdicts).
In sum, ample case law reveals “powerful reasons” why this Court should grant Respondents’ request.1 See Reeves, 2021 WL 5771151, at *3. In addition, this Court has “‘wide discretion’ to restrict contact with jurors to protect jurors from ‘fishing expeditions’ by losing attorneys.” United States v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) (quoting Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986)); see also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (quoting Calderon v. U.S.D.C., 98 F.3d 1102, 1106 (9th Cir. 1996)) (noting that habeas “was never meant to be a fishing expedition for . . . petitioners to ‘explore their case in search of its existence‘“).
Gomez claims that this Court need not grant the motion, as counsel‘s ethical duties will suffice to “protect jurors from harassment and intrusive inquiry.” (Doc. 15 at 9-10.)
But as the court noted in Reeves, “post-trial juror inquiries are inherently intrusive and potentially harmful, even if performed in a courteous and professional manner.” Reeves, 2021 WL 5771151, at *3. This Court “has no doubt that” Gomez‘s defense team “would behave
Gomez also claims that granting Respondents’ request will unreasonably restrict his defense team from investigating whether misconduct occurred, implying that only through juror interviews will his team uncover such misconduct. (Doc. 15 at 2-5.) To support his claim, he notes that he “is a Black man, and the victim was a white woman“; that the Supreme Court has deemed “interracial violence” a factor “which might create an ‘unacceptable risk of racial prejudice’ within a capital sentencing jury“; and that jurors may hesitate “to volunteer” statements of racial animus unless a defense team “broach[es] the topic.” (Doc. 17 at 5) (quoting Turner v. Murray, 476 U.S. 28, 36 n.8 (1986)).
While the Court does not discount these concerns, the Supreme Court has found “that jurors ‘may come forward of their own accord’ to report racial bias notwithstanding rules prohibiting lawyers from initiating such contact, a practice that ‘is common in cases involving juror allegations of racial bias.‘” Mitchell, 958 F.3d at 789-90 (quoting Peña-Rodriguez, 137 S. Ct. at 869-70 [collecting cases]). Evidence, moreover, may arise from a source outside an interview. See State v. Acuna Valenzuela, 426 P.3d 1176, 1194 (Ariz. 2018) (finding that a juror‘s blog exposed a juror‘s “potential biases” at trial but not “racial animus toward Acuna“). The Court will consider any claim of racial animus in support of a motion for leave of Court to interview jurors.
Finally, the passage of time in this case warrants attention. See, e.g., Cota v. Ryan, No. CV-16-03356-PHX-DJH, 2017 WL 713640, at *2 (D. Ariz. Feb. 23, 2017). Over two decades have passed since a jury convicted Gomez of murder; more than eleven years have passed since a jury resentenced him to death. Again, this amount of time implicates Tanner‘s “substantial concerns” about possibly disrupting “the finality of the judicial process. . . .” See id. at *2 (stressing that eight-plus years had passed since the jury issued its verdict).
Respondents’ motion is granted.
B. Victim Contact
Respondents ask the Court to require that Gomez and his defense team channel any request to contact a victim in this case solely through Respondents’ counsel. (Doc. 15.) They argue that the Court should grant this request under
As with motions on juror contact, Judges of this District have tackled motions on victim contact differently. Compare Chappell v. Ryan, No. CV-15-00478-PHX-SPL (D. Ariz. July 21, 2015) (Doc. 19 at 2) (granting request because doing so furthers
The CVRA defines victims in federal habeas proceedings arising from a state conviction as a “family member or other lawful representative” of the person killed by the one who committed the state offense.
At the outset, the standing doctrine does not prevent the Court from issuing the requested order under
Consistent with this intent, in Chappell, the court granted a motion similar to the one here because, “[w]hether or not [
(Doc. 19 at 2 (citing Sansing v. Ryan, No. 11-CV-1035-PHX-SRB (D. Ariz. Aug. 31, 2011) (Doc. 29)). In other words, the court held that granting the motion would further
This Court agrees with Chappell‘s reasoning. This order will bar the defense team from initiating contact with victims without their prior consent. It allows the defense team direct access to a victim if the victim so consents. When a victim does not consent, it also provides a mechanism, through leave of the Court, for the team to request the Court‘s permission
Gomez, however, asserts that the Court should deny the motion because Congress chose not to bar defense-initiated contact with victims. (Doc. 16 at 4-5.) In so asserting, Gomez relies on Mertens v. Hewitt Associates (id.), which notes the Supreme Court‘s refusal to “infer causes of action in [a statute]” because the “statute‘s carefully crafted and detailed enforcement scheme provides ‘strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly,‘” 508 U.S. 248, 254 (1993) (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985)) (emphasis in original). Mertens is misplaced here, as
Gomez also suggests that the Court need not grant the motion because “[e]xisting rules adequately protect” the rights of victims and Respondents lack evidence that the defense team “will violate any victim‘s dignity in any interview process.” (Doc. 16 at 8-9.)
See
Finally, the Court rejects Gomez‘s argument that the requested order would constitute a prior-restraint on his counsel‘s First Amendment rights by “foreclosing meaningful investigation and effectively barring victim contact.” (Doc. 16 at 7, 9.) “[A]ttorneys are properly subject to an array of different restrictions and regulations that can have the effect of limiting their ability to obtain information—even potentially exculpatory information from prospective witnesses.” See Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2018 WL 6573228, at *6 (D. Ariz. Dec. 13, 2018) (citing
Accordingly,
IT IS ORDERED granting Respondents’ Motion for No Juror Contact Absent Good Cause (Doc. 14). Neither Gomez nor his defense team may contact any juror absent leave of Court based on a showing that extraneous prejudicial information or outside influence was improperly brought to the jury‘s attention, or where there is evidence of racial stereotypes or animus affecting a verdict or sentence.
IT IS FURTHER ORDERED granting Respondents’ Motion to Preclude Victim Contact (Doc. 15). Gomez‘s defense team shall channel any request to contact a victim in this case, as defined in
Dated this 28th day of February, 2022.
Michael T. Liburdi
United States District Judge