*3 FARRELL, Before SCHWELB and PRYOR, Judges, Associate Senior Judge.
SCHWELB, Judge: Associate Medrano-Quiroz David and Ronald W. by jury Sermeno were convicted distri- possession of cocaine and of of cocaine bution it, with intent to distribute in violation of 33-541(a)(l) (1993).1 § appeal, D.C.Code On principal contention is by refusing abused his discretion disqualify a for misconduct.2 af-We firm.
I. THE TRIAL COURT PROCEEDINGS A. The evidence. which, prosecution presented evidence credited, September
if established that on Metropolitan officers of the Police De- partment, who were in a concealed observa- binoculars, post using tion saw Medra- no-Quiroz and Sermeno sell two small white codefendant, objects Larry Peay.3 to their in post The officers the observation broad- descriptions participants cast of all three promptly ap- the transaction. Other officers prehended Peay per- from his and recovered Frankfurt, Jaclyn son two white rocks of crack cocaine. S. Public Defender Ser- vice, Cynthia with whom James Klein and thereafter, Medrano-Quiroz Soon and Ser- Goode, Service, Public Defender Immediately meno were also arrested. be- brief, appellant Medrano-Quiroz. David hall, apprehension pool upon fore his DC, officer, Shockley, Washington, making eye-contact
Tamara A. Medra- no-Quiroz filed a brief for Ronald W. Serme- threw into a trash can some white appellant paper holding in An no. which he was his hands. States, (D.C. was also convicted of willful United 662 A.2d 1371-72 court, appear 1995); failure to in violation of Lawrence v. United 23-1327(a) (1996). § (D.C. 1992). D.C.Code 2. Sermeno also the evidence contends that 3.Peay possession of unlawful was convicted support him was insufficient to his con cocaine, 33-541(d). § in violation of D.C.Code denying victions and that the trial eiTed in appeal. He did not judgment acquittal. These con motion See, e.g., Taylor tentions are without merit. however, Ev- point At this the case.” paper, which contained about officer retrieved judge. report the incident ans did not rocks of crack cocaine. Medrano- twelve Quiroz person. on his had $158.00 16,1994, until, on proceeded June The trial lengthy obliged to take a apprehended while he was Sermeno appellant Sermeno failed because recess bicycle. Upon approach on a seated trial to re- waiting for the appear. While officers, loose attempted to stuff three hallway sume, sitting in a No. 9 was white rocks into a hollow the handlebars. Ham, Es- jury room when Daniel near the proved recovered and also The rocks were prac- quire, a criminal defense Sermeno, Upon searching be crack cocaine. Court, by. walked Superior tices the officers found $90.00. No. 9 were friends Ham and Juror testified or called None of the defendants they up a conversation neighbors, and struck *4 any witnesses. with one another. provided to account later According to the B. No. 9. Juror Ham, No. 9 told Ham the court against The trial of the ease Medrano- in jury of a a criminal that he was a member Quiroz, Peay began on June Sermeno and case, might there be but that he believed that part preliminary 1994. As a of his instruc- nothing in his case because had a mistrial tions, prior opening which were delivered explained that happened day. all Ham there statements, jurors the not ordered delay. all of reasons for the could be kinds another, anyone to discuss with one or with juror judge had or- told Ham that the else, “anything at all about the no mat- jurors not to discuss the case. dered the insignificant may you.” ter it how seem into Juror No. 9 then followed Harn another statement, During opening Peay’s her at- proceedings in an courtroom and observed torney jurors police that told appear- Ham was unrelated matter which planted on her client the crack cocaine that judge. After Ham’s ing before a different they possession. claimed to have found completed, the two men left case had been She stated that together and rode the Metro the courthouse Ham to a station near their residences. Peay, they stopped
when the officers Mr. pri- in Ham’s wall, then drove Juror No. 9 home up they him threw and vate automobile. him. searched Those officers did not find any drugs Peay. point, on Mr. At that riding in Ham’s Juror No. 9 was While gentlemen, ladies and the officers had car, he told Ham that the case which he They choice to make. could either let Mr. charged was a involved two defendants Peay go, go the cor- and not back around charged pos- with selling drugs with and one they thought ner and arrest two men that Ham, According to Juror No. session. selling drugs, they say could that were “something to the effect [that] then stated And, they drugs Peay. on Mr. that found himself when all he could do to restrain way they go right back around and lawyers say police heard the they thought look for the two men that man drugs pocket of the planted the And, selling drugs. exactly that’s they wanted charged possession with because did, police officers ladies and what those Ham that he get the seller so bad.” said gentlemen. response No. 9’s made no verbal to Juror comment, “may have that Juror No. 9 Following completion of counsel’s might I have invol- giggling, sort of been statements, clerk, opening Mr. him.” Ac- untarily giggled along sort Evans, jurors jury room. led the to the Ham, cording route, While en Evans heard one say say anything he did not partic- I not say to no one in did —Juror 9— tell me what anything more. He did not that “isn’t that something ular to the effect in; not tell me incredible, the trial was police just plant stage would [that] testimony. any or not there was somebody?” told Juror whether something on Evans basical- it. Our conversation talking And that was “you’re supposed to be No. 9 well, ly hope you’re right I that he encountered ended with confirmed room, you that there is a mistrial so don’t miss Ham outside the that he had no, hope courtroom, I isn’t a work. And he said there proceedings watched in another interesting because it’s an case. I mistrial with Harn. and that he had ridden home want to sit on it. denied, however, Juror No. there had regard- been conversation in Ham’s car Meanwhile, had issued bench ing the case before the court. After Sermeno, warrant for the warrant questioning complet- of Juror No. 9 had been executed later on June 1994. The trial ed, Deputy reported Clerk Evans following day, Friday, resumed on the June court the comments that this had made arguments 17. Following closing and the immediately statements. instructions, jury began court’s to delib- thereafter, p.m. Shortly erate at 3:45 attorneys to state asked jurors were excused for the weekend. positions light foregoing disclo- Monday, On June Ham encountered response, all sures. counsel for three Yaffe, Esquire, prosecuting Eric who was argued defendants that Juror No. 9 should three defendants. Harn told Yaffe that he however, were, disqualified.4 There dif- be had heard that there would a mistrial in a be attorneys ferences as to how the between handling. case that Yaffe was Yaffe ex- proceed. Peay’s urged court should counsel plained anticipated, that no mistrial was *5 judge reopen questioning the to the of Juror Ham then related his conversation with Ju- him No. 9 and to confront with Ham’s ac- ror No. Harn “gave told the court that he count in the car. The of the conversation nugget, theory that [Yaffe] little that of de- Sermeno, attorneys Medrano-Quiroz and fense, appropriately and it.” that was Yaffe however, were reluctant for tactical reasons reported to the court the facts that he had agree interrogation to to further of Juror No. and, morning from Ham on the learned verdict, prior questioning to lest further 21, 1994, judge hearing convened a June him the defense. on the matter. judge The to declined point.”5 or to declare a mistrial “at this He hearing. C. The expressly description credited Ham’s of his hearing regarding con- The Juror No. 9’s judge conversation with Juror No. 9. The began juxy duct before the resumed deliber- also commented that proceedings ations. The were conducted likely I think it’s don’t this [that] presence jury. outside the After dis- forgot. He remembers the details of a cussing with counsel .the manner in which way essentially conversation Mr. Harn handled, judge the matter should be happened hour a does that half in called first Ham and then Juror No. 9 and earlier, likely, really, and it’s not that interrogated regarding each the incidents forgot. prosecutor reported which the judge court. The stated: potential me that [I]t Ham’s account of his conversations with does seem to problems, may 9 has forth in Part II.B of whatever their extent be Juror No. been set opinion. person, particular this it No. turn with this there is no When was Juror 9’s respond judge, frankly my mind to believe from questions to reason Peay’s attorney attorney objection. party’s See Duvall v. United Sermeno’s asked (D.C.1996). 449 n. 1 to declare a mistrial. Counsel for specific Medrano-Quiroz made motion for a no mistrial, that Juror No. 9 should but contended attorneys correctly 5. The and several noted permitted jury. not be to remain on the All three ruling that an definitive was unneces- immediate attorneys they willing because, stated that were sary any defendant was in the event that complete jurors, the trial with eleven but the acquitted, jurors proved or if the to be unable to defendant, prosecutor proce- any to such a declined to consent reach a unanimous verdict as to trial, dure. At the time of the lacked then that defendant’s motion for a mistrial would jurors authority proceed a moot. with eleven over become planting people using that as everything this evidence that we have heard per- 9 believed problem any way convicting.” more serious than this Juror No. having “just listening son from the first moment forward to me at the the clerk was Peay’s not enthusiastic about Mr. According been No. time.” to Juror litigation strategy. having expressed And At conclusion no comment. clerk made Evans, it, walking 9,6 Mr. down the hall with questioning his final of Juror prepared expressed having and I’m to find any they counsel if fur- judge asked all true, accept If it it to Mr. Harn. we that as attor- requests. prosecutor The and the ther any to me that there is rea- doesn’t seem neys for the two all answered anything think son from we have known to negative.7 person with that view of Mr. excused, and the Peay’s completely defense couldn’t be attorneys immediately proceeded to and the impartial juror evaluating [Me- fair and sentencing the selection of dates. Counsel drano-Quiroz’] gov- whether the request or comment rela- made no further proven beyond ernment has a reasonable alleged part tion to the misconduct thing regard doubt. And the same Indeed, party no Juror No. 9. demanded case. [Sermeno’s] any relief in the trial court new trial or other cautioned, however, just that “I’m completion post-verdict ques- after the here,” thinking through go as I and he tioning of Juror No. 9. plain ruling yet made it that his was not cast
in stone. II. Medrano-Quiroz’ attorney suggested that appropriate way proceed. would be LEGAL DISCUSSION “[l]etting having deliberate and voir appeal. A Preservation the issue dire if after verdict to see there was prosecu- taint.” Sermeno’s and the *6 matter, an initial we note that As agreed, judge proceeded tor and the as coun- question as to whether there is a substantial suggested jurors sel to directed the re- Medrano-Quiroz pre properly and Sermeno sume their deliberations. objections appeal served for their to Juror Shortly p.m., jury presence jury. Dim before 1:00 the returned No. 9’s continued prior to the guilty ing verdict of all three defen- his discussions with counsel verdict, a mis charges. judge judge dants on all then called the declined declare plainly point,”8 in No. 9 for a trial “at this and he contem ques- Juror second round of in tioning. plated proceedings on the issue the Juror No. 9 now softened some further any or of them previous categorical representa- measure his event that the defendants for tion that he and Ham had not discussed the were convicted. Counsel both case; questioning of Juror No. agreed he asserted that he did not remember that further of the issue of having the in the car which 9 and the ultimate resolution conversation the juror juror deferred until after Ham had described to the court. The bias should be that, did, however, to the prior stating, presence recall verdict. To the extent deliberations, clerk, jury’s the funny completion “I of the thought of the disqualify Juror cops judge had declined to that one would think that the sentencing. According questioning. 6.During would be for the second round of "may that he have been on gave No. 9 also remarked trying no information Juror No. Ham him get [Ham].” information out of After subjects. these juror judge to return to the the room, had told the inquire Peay's attorney judge asked the requested a dire examina- Peay’s counsel voir request for further about Juror No. 9’s informa- jurors. this denied tion of all of the juror for a third tion. The summoned request. on his at- time and directed him to elaborate tempt information from Ham. The to obtain point” phrase judge used the “at 8. The wanted to know “how stated that he had during the on several occasions "at this time” quantities things that we work in terms of the hearing. pre-verdict stage looking have been at” and whether trial, all, only provisional- during stage so relief an earlier of a No. 9 at he had done record, ly, incomplete changed on an and without the circumstances have as the where requests further for relief progressed, case has a defendant must renew questioning request changed defendants after the the basis of the cir completed. appeal had been preserve cumstances in order to any contention based on the record as modi conformity previously an- with his A.) (Leon fied. v. United Wilson intentions, judge interrogated nounced (D.C.1989). 1135, 1143 A.2d (and 9 for a time later a Juror No. second time) third after the three defendants all authorities, these as well as the si- Given guilty. judge inquired, been found When the key stage lence of defense counsel at the questioning, at the conclusion of the whether proceedings, government trial court further, however, anything counsel had appel- might plausibly argued have that the attorneys appellants responded for both preserved lants have not for our consider- they nothing. Significantly, party no principal they have ation issue which ques- asked the relief after the particular asked us to decide. We note ended, tioning of Juror No. 9 had even although only remedial action re- though this was the first time that all of the quested by and Sermeno Having relevant facts were before court. (Sermeno) the trial court —a mistrial and the declined to Juror No. 9 on an (Medrano-Qui- disqualification record, incomplete was never re- roz) during that is kind available —was quested to rule on that conduct once (but after) trial, appellants apparent- now complete. the record was ly complete, assert that once the record was post-verdict granted should have Counsel’s failure to their motions renew i.e., though a new trial9 —even no might post- consequence be of little if the relief — motion for a new trial was filed either essentially verdict record had been the same record, appellant in the court below.10 pre-verdict as the but this was not so. question On the whether or not Juror No. 9 Proeedurally, appellants thus find them- court, deliberately deceived the for exam- position. they in an If are selves awkward issue, ple according appel- critical —a complaining disquali- refusal to judge might lants —the have taken into mid-trial, fy appeal Juror No. 9 their juror’s post-verdict consideration the ac- by essentially undisputed reali- undermined knowledgment shortly after counsel had ties, namely, judge plainly had the statements, presented he made *7 authority questioning of the defer further questioning Peay’s proclaimed a comment de- verdict, appellants until after that both Arguably, appellants’ fense. claim that Ju- agreed procedure, to that as all preju- ror No. 9 had to conceal lied order knew, participants re- the record would dice that he harbored the defense incomplete until questioning main significantly by post-ver- weakened his If, hand, completed. on the other responses, may dict which have made him claiming judge or- are the should have significantly come across as more candid. of full dered a new on the basis the stated, verdict, developed they then We have a somewhat different record obstacle, context, comparable but nevertheless that “a are confronted with different judge party neglects ruling namely, to seek a on his that the trial was never asked record, preserve appeal.” motion fails to the issue for to rule on that that he therefore States, 964, so, being court is now Thorne v. 582 A.2d 965 never did and that this United (D.C.1990). judge an issue which the trial We have also held that where asked decide judge prayer never addressed. has denied defendant’s By Superior 10. Rule 33 of the Court’s Rules of the time the record as to Juror No. 9 was requires Procedure a motion for a new complete, Criminal disqualify it was too late to him or to newly trial not based on discovered evidence to mistrial, jury already declare a for the had com- days be filed seven after verdict. No such within pleted appellants guilty. its and found both work present has been filed to the date. motion
649
States,
145, 155,
contend,
98 U.S.
Reynolds v. United
government
does not
howev-
(1878).
er,
by
244
are barred
25 L.Ed.
appellants’
claims
speak up after the
failure of their counsel to
Where,
here,
impartiality
of a
contrary, the
On the
verdict was returned.
plausibly
question,
been
called into
has
Ser-
government
expressly
has
conceded that
judge
responsibility
it is the
the trial
objections
preserved
appeal
meno has
his
hearing
determine
hold a
whether
participation
to the continued
of Juror
See,
allegation
e.g., Leeper
merit.
of bias has
Although
government
has asserted
695,
(D.C.
States,
v. United
579 A.2d
698
Medrano-Quiroz’ appeal
procedurally
is
de-
1990) (citations omitted).
In the
argued
grounds,11
other
it has not
fective on
case,
hearing,
held an extensive
omissions
post-verdict
that his counsel’s
op
afforded a full
the defendants were
proper disposition
should affect the
of his
sug
portunity
positions
to state their
and to
Moreover,
appellants appeal.
both
gest questions to be
to Harn and to
posed
forcefully objected,
proceed-
earlier in the
Appellants
challenged
Juror No. 9.
have not
ings,
participation
to Juror No. 9’s continued
utilized
procedures
ever indicated that
and neither
Indeed,
hearing.
on
the fairness of the
position
changed.
Under these cir-
record,
reasonably
challenge
no such
cumstances,
to consider the
we have elected
be sustained.
they
presented
issues as
have been
to us.
objection
the absence of
relevant
circumstances,
Under
these
government,
appellants’
we address
conten-
scope
refusal to
our review
apparent,
As
be
tions on
merits.
will
quite
Juror No. 9 is
narrow. “Fol
however, appellants’
failure to ask the
hearing,
lowing proper
the determination of
finding
to make a
whether Juror No. 9 lied
particularly
bias or
lies
with
bearing
has some
whether
court,
in the discretion of the trial
reversible
refusing
abused his discretion in
to excuse
discretion,
only
...
for a clear abuse of
juror.
underlying
findings
of fact
that determi
great
nation are entitled
deference.”
B. The standard
review.
Ctr.,
Washington Hosp.
Washington v.
579
(D.C.1990) (citation
right
impartial
to a trial
A.2d
and inter
185
omitted).
deeply
quotation
is “fundamental and
embedded in
nal
marks
“Our review
jurisprudence.” Hughes
question
preju
American
v. United
is deferential because the
(D.C.1997);
substantially
judge’s ap
689 A.2d
1207
see dice turns
demeanor,
Dowd,
717, 721-22,
Irvin
... and is
praisal
also
366 U.S.
(1961).
S.Ct.
provide us with
.that
Klee,
mind;
keep
open
v.
failed to
an
at hand.
In United States
problem
(9th Cir.),
denied,
U.S.
cert.
419
1. Juror No. telephoned prosecutor by discussing the ease judge’s instructions regarding proce posed questions friend and (and, extent, by making with Harn to some cases, terminat drug prosecutor dures the comments overheard conversation, not abuse ed clerk); by declining to order a new her discretion trial). regard agree in this premature disparage- No. 9’s following by the court United Peay’s “planting” defense demon- statement ment of Servs., press try stay Dep't Employment disposition *9 Columbia of 1350, (D.C. 1992). view, point how- prejudiced n. 5 of view. In our 1353 his ever, quite appropriately apparently argues that also context, juror’s interest in this conclude (the juror) Juror No. 9's remark to Harn that continuing the issue was irrelevant to to serve interesting case to be an one and found the of bias. hoped that there would be no mistrial reflected
651
376,
pass constitutional
391
trials would
Boylan,
F.Supp.
“[F]ew
698
States
(1st Cir.),
each
(D.Mass.1988),
required
muster if a new trial [were]
aff'd,
653 judge potential to subvert incon- from the had giggle as If viewed by the three justice depriving fault him for that.17 the course sequential, we cannot right to a trial an defendants of their event, expressed any Juror No. 9 first jury. a lies to the impartial When “planting” skepticism his about tending court in order to conceal information made immediately Peay’s his juror’s part, on the to show No evidence was her' statement. “impermissible partiality” reflects conduct counsel’s support of defense introduced expectation inconsistent “quite and is theory, nothing occurred at trial which give juror] will truthful answers that [the juror to compelled a reasonable would have weigh the ability or his concerning her of coun- negative impression alter his initial obey fairly and the instructions evidence quite theory. The trial sel’s Colombo, States v. 869 the court.” United giggle insofar as “the properly conclude (2d Cir.1989) (citation 149, omit- 151-52 F.2d concerned, “the may have been” ted). trying 9 had been to hide If Juror No. McMann, supra, probability prejudice,” impartiality, lack of we would be his own words, 818, 435 F.2d at In other nil. compelled appellants’ to reverse convictions. possibility appreciable no discerned as to defendant would that the verdict Supreme Court has made kept a have if Harn had been different clear, however, every that not false state This did not con- straight face. assessment by juror during a voir dire examina ment a judge’s considerable stitute an abuse of the juror’s disqualification. tion warrants discretion. applicable formulated the The Court has principles follows: (4) Lying to the court. a hold that to obtain a new trial in such We Finally, that Ju appellants contend situation, must first demonstrate party a 9 lied to the court when he denied ror No. honestly a that a failed answer that he had discussed the case with Harn dire, question material on voir and then riding According
while in Harn’s car. response further that a correct would show Medrano-Quiroz, appellate counsel for challenge basis for a provided valid have juror’s lying “motive for was to conceal his concealing in- for cause. The motives for par own misbehavior and the extent of his only may vary, but those rea- formation tiality, both before and after his conversation juror’s impartiality that affect a can sons with Mr. Harn.” claims of a truly be said to affect the fairness circumstances, “under these the trial court’s trial. appel to strike [Juror 9] refusal jury cannot be reconciled with the lants’] 556, Power, McDonough supra, 464 U.S. at right impartial Sixth Amendment to trial 850; at see also Harris v. United 104 S.Ct.
jurors.”
(D.C.1992)
763,
n. 5
McDonough
standard in a
(applying
Power
appellants
The issue raised
both
case).
North,
In United
criminal
States
regarding the
Juror No. 9
trustworthiness of
343,
(1990),
U.S.App. D.C.
partiality and therefore lie, may 904. ment not be a noble motive for at 910 F.2d at U.S.App. D.C. *12 only provides per- punishment ... is one factor —albeit a desire to avoid “[C]oncealment juror’s explanation one—in the critical test of the lack of important suasive 905; bias,” it is regardless pro- 910 F.2d at of whether he was actual id. at candor prosecution, pro-defense, in our with only ingredient one determination endowed least, impartiality. very “substantial appellant has shown a Solomonic whether At conclude, prejudice” judge properly of actual result without likelihood Hill, discretion, juror’s supra, 622 A.2d at No. 9’s abusing conduct. that Juror his Harn, failure to admit he had said what was, it that reprehensible as did not establish Applying principles these prejudiced appel- was agree appellants’ are unable to with we lants. judge his that the trial abused contention by refusing Juror No. discretion III. First, finding judge never made a that juror deliberately lied. The did CONCLUSION state, following pre-verdict his initial interro- following Supreme from the thought passage that he
gation of Juror McDonough unlikely forgotten opinion his con- Court’s for the Court in latter’s car. That purposes pres- versation with Harn in the Poioer is instructive for conclusion, however, was based on an incom- ent case: subsequent can- plete record. Juror No. 9’s litigant long This held that a Court has acknowledgment that he made the re- one, perfect entitled to a fair trial but not a clerk, by and
marks overheard perfect are no trials.... Trials for there attempted to elicit admission that he had costly, parties, are for the- but also only Harn, might additional information duty their civic performing for the more led the to a somewhat have judges society pays and for which and juror’s veracity. appraisal of the favorable support manage the trials. personnel who believed, will never know what We judicial system It seems doubtful that our however, ‘counselfailed to appellants’ because liti- provide have the resources to would up-to-date finding as to whether request an they possi- gants perfect-trials, Juror No. 9 lied. ble, constantly keep abreast of and still its increasing caseload.... assume, arguendo,
But even if we
asked,
long way
9 lied
if
from the
Juror No.
and
have also come
found, presumed
have so
have
all trial error was
would
time when
prong
reviewing
of the McDon
were con-
prejudicial
not satisfied the second
courts
test. For the reasons
ough
technicality....
Power-North
we
sidered citadels of
653-654,
pages
supra,
by
at
a cor
this Court
adopted
have stated
harmless-error rules
embody
principle
Juror No. 9 to the
response
Congress
rect
prefer-
judgment
his conversation with Harn
question about
courts should exercise
a substantial
for “error”
not have demonstrated
to the automatic reversal
would
ence
Moreover,
actual bias.
it is not
do not affect the
ignore
likelihood of
errors that
for the
all evident that the motive
the trial.
at
essential fairness of
lie,
lie,
to conceal his own
if it was a
Power,
U.S. at
McDonough
supra, 464
impartiality.
supposed lack
(citations,
quotation
internal
On the reveals, appellants’ all of Taking into consideration decep- obvious incentive for the most contentions, improper we conclude juror’s part the universal tion on the not affect the of Juror' No. 9 “did self-preservation. Presumably, conduct instinct for trial,” id., and that that he essential fairness of No. 9 did not want it known Juror his discretion trial did not abuse judge’s order not to discuss had violated the No. 9 to remain permitting either person wants to be the case. No reasonable occasions, to his he had not talked stage or pre-verdict jury at the else, anyone case. about the neighbor, nor to order a new refusing, sponte, sua jury returned its verdict. II. Affirmed. presented to a case has been Once a
PRYOR, dissenting: Judge, Senior deliberation, the role given them for Questions recedes. judge and counsel I. here can be multi- of the kind that arose decisions, the same case Having reviewed reasonable judge must make a faceted. The majority, record as the the same factual *13 and At the pertinent facts. effort to ascertain a entitled to appellant was I conclude time, must be taken not to intrude same care participation the verdict free from unduly jury’s function. or influence the upon question. juror in factors, of com- balancing this which we It is customary background of the Against the monly to as trial discretion. refer case not to discuss the judicial admonition recognizes that there is no approach Such an deliberation, juror except —Juror range to the of response one “correct” wide engaged pattern question- in a of number suddenly 9— arrive and unex- questions which throughout his service able behavior at the trial door. pectedly shortly During a court recess after case. judge, the the In this instance trial with statements, clerk the courtroom counsel, diligent participation of made a and aloud, juror to no overheard the state problem. resolve the Indeed careful effort to questioned particular, one in that he whether unsuccessfully government he tried —because on someone police plant the would evidence get parties agree not the counsel would —to The gain in order to a conviction. clerk person jury.18 eleven proceed to with an juror the that he not to talk reminded was Later, tampering not involve setting. This case does about the case in that source, juror an external unautho- jury the for delib- a from the case was submitted to false eration, juror investigation, demonstrable learned that Juror rized the selection, juror during jury a a chance encounter and statements number 9 had had clearly form of identifiable neighbor, a a defense at- or some other conversation with presents ques- torney, Rather this ease practiced in the trial court. misconduct. reflection, nature but nonetheless lawyer tions more subtle in Upon the decided dis- jury function. The essence of hearing In a outside the to the close the matter. central be free of jurors, lawyer factfinding is that the factfinder presence of other related hallway on determinative issues and neighbor prejudice in a bias or that he saw reasonably impartial open or similarly be neighbor was informed that the was on aware, presented. Thus being the evidence duty. lawyer the minded to Without from in re- lawyer require candor juror and observed the in a courts followed generally seek inquiries Upon sponse in a courtroom. leav- proceeding brief influences courtroom, minimize external lawyer agreed give preempt ing the a have focused lawyer upon their decisions. a ride in his car. As has the accused on whether primary concern together, the time stated recounted himself, the hands of bias at suffered actual hardly restrain when that he could communica- heard, of external is the result being that the which argued in the case 684 A.2d Hill v. United drugs on one of the defen- tion. police planted (D.C.1993). showing of substantial Upon may have lawyer recalled that he dants. emanating from unau- prejudice of nothing likelihood response, but said laughed a little be contact, should doubts reasonable subject. juror, in an- thorized expressly on Id. said, the accused. in favor of resolved from the two questions swer to twelve; size is reduction number Georgia, traditional 435 U.S. S.Ct. 18. See Ballew (a prosecutor). (1978) favorable generally discussion deemed 55 L.Ed.2d jury size from the studies of reduced scientific posture situation, the court left him the sponse to it is a combination In the impartial factfinder. me to conclude that causes of circumstances threshold of likelihood that the convictions, or alterna- I would vacate unremedied. been satisfied and has case to allow tively, remand the contrary, early in despite instructions to finding existing judge to make a an inclination to verbalize showed juror’s truthfulness regarding record public in the case in a being raised defenses Thereafter, deter- the court. of this aspect same way. Later he raised the mine if relief is warranted. practicing at- with a case under deliberation know, know, nor can we torney. We do unedited nature complete this. ju- stated encounter. The understandably not elaborate inquiry,
ror’s formal, beyond generalities, but went case raised in the specific
about no Although made being heard. HENDEL, Appellant, Diane J. *14 that, in the course finding, appears it specific coun- juror, the court and questioning lacking in candor. Ultimate- deemed him sel PLAN COUNCIL WORLD EXECUTIVE after the questioning last round of ly, in the and Maharishi International verdict, had dis- juror admitted that he University, Appellees. instructions, but obeyed some of the court’s No. 96-CV-105. how necessary to better understand felt it system works. Appeals. of Columbia Court of District likely any one of recognize that it is I -4, Argued March not suffice as probably would episodes these 30, 1997. Decided Dec. juror. But viewed discharging a basis total, who discloses record instruction, publicly disobeyed judicial de- a case under privately talked about
liberation, than candid with was less
court, reluctantly conceded that and who system rather figure out the
felt a need the case. simply
than decide essentially argues that the
Appellee meager that with the was so
contact exter- not be as substantial
it should viewed contact, none of the and further
nal prejudice to actual
incidents form a nexus Allowing considera-
this case. discretion, appears the stan-
ble room for likelihood of
dard of substantial has been met. The wisdom partiality recognizes is that it
this standard matters, simply can
reconstructing such we bearing on pertinent facts
not know all the juror prejudice. In fairness question of equally difficult to government, it is Thus, view, my rebuttal evidence. been should not have allowed
Juror 9 re- found that his unless it was
deliberate