In Bid for New Trial, El Chapo Claims Juror Misconduct

U.S. District Judge Brian Cogan, upper right, gives instructions to jurors in the trial of Joaquin “El Chapo” Guzman in New York on Feb. 4, 2019. A month after raising concerns of potential juror misconduct, El Chapo’s lawyers moved Tuesday for a retrial on those grounds. (Elizabeth Williams via AP)

BROOKLYN, N.Y. (CN) – A little over a month after an anonymous juror in the trial of convicted Mexican drug kingpin Joaquin “El Chapo” Guzman spoke to VICE News about their experience sitting on the case, Guzman’s lawyers have filed a motion for a new trial. 

“In a case generating publicity the court called ‘unparalleled,’ a juror contacted a reporter a day after the verdict to volunteer that panel members had violated their oath and scorned the court’s incessant instructions by actively following and discussing the blizzard of media coverage, and falsely denying it upon judicial inquiry, throughout the three-month trial,” wrote Marc Fernich, an attorney for Guzman, in the motion filed Tuesday morning. 

That reporter is VICE News’s Keegan Hamilton, who covered the trial gavel-to-gavel and said he took a video chat call from the juror last month. Guzman’s lawyers requested an evidentiary hearing to investigate the allegations of juror misconduct reported in Hamilton’s story, including deliberately checking reporters’ Twitter feeds and news stories about the case. 

If the hearing confirms impropriety, Guzman is due a do-over, his lawyers say, as such actions would thwart his Fifth and Sixth Amendment rights to a fair trial and unbiased jury.

After an extraordinary three-month trial and 35 hours of deliberations, the jury in the Eastern District of New York convicted Guzman on Feb. 12 on all 10 counts of drug trafficking, continuing criminal enterprise and weapons charges. 

The 18 Guzman jurors — 12, with six alternates — were anonymous to almost everyone, including both parties, the press, and even each other. They were driven back and forth from the Brooklyn courthouse by U.S. Marshals and sequestered from the public once they were inside. 

In his motion, Fernich called the publicity Guzman’s trial received “unprecedented in its global scope and intensity.”

Though U.S. District Judge Brian Cogan warned the jury before every break and at the end of every day not to discuss or read or watch anything about the case, it’s possible there could have been some accidental slip-ups. To illustrate, Fernich quoted enough Chapo-related tweets to fill over half a page worth of footnotes, calling them the “the tip of the proverbial iceberg.” 

The motion quotes Judge Cogan giving a warning Jan. 17 he repeated every day: “Ladies and gentlemen, we’ll break for the day. Please stay away from any media coverage of the case, do not communicate or say anything to anybody about this case, don’t do any research on the case. Keep your mind open.”

The outspoken juror said that not only did the group fail to heed the judge’s orders, but some people intentionally disobeyed them. 

“You know how we were told we can’t look at the media during the trial? Well, we did. Jurors did,” the juror told VICE News. 

The juror told Hamilton, who had an active Twitter presence throughout, that the jury “would constantly go to your media, your Twitter” to check for updates.

“Beyond spurning unequivocal warnings to avoid press coverage of the case, the juror’s VICE remarks indicate that panel members brazenly lied to the court when asked about it” on at least two occasions, Fernich wrote in his motion. 

Just before jury deliberations, court documents were unsealed that alleged Guzman had drugged and raped 13-year-old girls. The allegations were widely reported in the press, and the juror said they read Hamilton’s tweets about it and tipped off the other jurors. When Cogan then asked the jury privately if they had seen anything in the news, they denied it, the juror said.

In one footnote of the motion, Fernich called out Cogan himself for denying the defense’s request to ask each juror individually, in private, whether they had seen the child rape allegations. Cogan told the parties he had a “very good rapport with this jury,” so he could poll them as a group, Fernich recalled. 

If the juror’s account is correct, the group of jurors lied to Cogan’s face that day. However, the juror told VICE News the allegations didn’t factor into the verdict.

Also toward the end of the trial, news broke in the New York Post that one of Guzman’s lawyers Jeffrey Lichtman had had an affair with a female client. When Cogan privately and vaguely asked jurors if they’d seen anything in the news recently, they said they hadn’t. As soon as he left, one juror allegedly used a smartwatch to find the Lichtman story, according to the outspoken juror. 

Lichtman co-signed Tuesday’s 25-page motion. The filing came as no surprise, as the defense had requested an extension of time to file the motion on Feb. 22.

The motives of the juror who spoke to VICE News are not clear, nor is the truthfulness of their statements. But case law says that absent a hearing, parties “must assume the truth” of any affidavits alleging juror misconduct, Fernich wrote.

Guzman’s defense team also suggested the juror “perhaps…craved future literary or commercial engagements” from their service. 

“If a justice system’s measure is how it treats the most reviled and unpopular, then ours may have failed Joaquin Guzman by denying him the fair trial before an untainted jury to which he’s constitutionally entitled,” Fernich wrote.

In his conclusion, Fernich quoted U.S. District Judge Nicholas Garaufis, who presides in the same courthouse. In a pretrial meeting last month for a separate but also high-profile case, Garaufis noted the Guzman juror debacle and said he would “come down very hard” on jurors in his own courtroom if they acted improperly. 

“I’ll make a referral to the U.S. Attorney if I have to,” Garaufis said Feb. 28. “Somebody’s got to do something about this…we’ve got to do whatever we can, in a high-profile case like this, to make the point.”

Guzman’s sentencing is currently scheduled for June 25. 

A spokesperson for the U.S. Attorney’s Office for the Eastern District of New York declined to comment on the motion.

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