9th Circ. Orders 2nd Look at Juror’s Intimidation

     SAN FRANCISCO (CN) – A federal judge must reconsider whether Las Vegas police intimidated a hold-out juror in a highly publicized trial and whether the defendant’s due-process rights were violated as a result, the Ninth Circuit ruled Thursday.
     A jury convicted Manuel Tarango of attempted robbery and attempted murder in 2005 for a 1999 attack on a Las Vegas bar, where a rock band of off-duty police officers was performing and where many off-duty police officers were in the audience. Several patrons were shot and one police officer was shot several times.
     After the jury began its deliberations, the foreperson sent a note to the trial judge indicating that the jury had “reached a stalemate” because of a “problem juror” who was holding out against a guilty verdict.
     The jury returned a guilty verdict the next day.
     But the hold-out juror later wrote a letter to court, claiming that on the second day of deliberations a police squad car had followed him for seven miles – which he found “unnerving.”
     “I realize the state has much time and money invested in this case,” the juror wrote.
     “I concluded Metro somehow knew who I was and knew of my unwillingness to convict. Therefore, I relinquished my vote under duress.”
     After hearing of the letter Tarango’s attorney moved for a new trial, arguing that the incident violated his client’s right to an impartial jury.
     But the trial court denied the motion, finding that the alleged conduct was “ambiguous” and “nonspecific in content,” and sentenced Tarango to 22 to 58 years in prison.
     The Nevada Supreme Court upheld the decision, explaining that “it is not clear whether being followed by a marked car qualifies as a communication at all” under the lawful determination of juror misconduct and that the alleged influence of the contact was “too speculative.”
     Tarango then filed a federal habeas petition in 2010, which a federal judge denied, but the Ninth Circuit vacated that judgment on Thursday.
     Writing for the three-judge panel, Circuit Judge Mary Murguia cited the 1892 Supreme Court case Mattox v. United States, which she said establishes that “any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing that the contact was harmless.”
     But the trial court never made a determination that the contact was harmless here, she said, which is required “even if the contact did not constitute a communication nor concern a matter pending before the jury,” Murguia said.
     “Our case law compels our conclusion that the contact in question had enough of a tendency to influence the jury’s verdict so as to necessitate judicial inquiry into prejudice,” Murguia said.
     It was therefore an error, she said, for the Nevada Supreme Court not to conduct a prejudice analysis because the juror’s police tail did not amount to a “communication about a matter pending before the jury.”
     And “we have little trouble concluding that the contact that the Nevada Supreme Court assumed occurred had enough potential for prejudice to cross Mattox‘s low threshold,” Murguia said, since Las Vegas police officers were “deeply entangled” in the case and the juror testified that he had been followed so closely that he could not see the police car’s front wheels or bumper.
     “If true, this conduct could have reasonably been understood as an attempt to intimidate,” she said.
     Circuit Judge Johnnie Rawlinson wrote a 13-page dissent, deferring to the Nevada Supreme Court’s finding that the juror’s allegations were “speculative and unsubstantiated.”
     “We are bound by that factual determination absent a showing of unreasonableness,” she said.
     She added that Mattox is “far afield” from the case’s dispositive issue, that the majority “engages in impermissible appellate fact-finding” and that “no Supreme Court case supports the majority’s conclusion.”
     The Circuit remanded the case to the federal court for an evidentiary hearing to determine whether Tarango’s due-process rights were violated.
     Arguing counsel for both sides did not respond to emails requesting comment on Thursday afternoon.

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