A man convicted of sexual assault may receive a new trial because one of the jurors, a lawyer, conducted outside research and presented it as professional legal analysis during deliberations, the Colorado Court of Appeals decided on Thursday.
“In other words, the focus is on ensuring that the trial court, and not the lawyer-juror, is the source of all the law the jury considers,” wrote Judge Ted C. Tow III for the three-member panel.
A woman reported to Denver police in March 2011 that a man sexually assaulted her at gunpoint. After collecting forensic evidence, police were unable to identify the perpetrator through DNA. However, when Damon D. Newman was arrested later in California, Denver law enforcement received an alert about the genetic match and they extradited Newman to Colorado.
Although Newman maintained that the encounter was consensual, a jury convicted him of sexual assault armed with a deadly weapon.
Before his sentencing, Newman submitted an affidavit from one of the jurors alleging that a second juror, identified as M.O., was a practicing attorney who spoke multiple times during deliberations about criminal law and court proceedings. M.O. allegedly performed his own outside research into Newman's character witnesses and brought it to the attention of the jury.
“I knew taking the bar [exam] would come in handy,” M.O. said, according to the juror who came forward. She wrote in the affidavit that M.O. “pulled a piece of paper out of his pocket with a definition of law on it. It was something about character witnesses….I do not recall the specific wording of the definition but it included what could and could not be asked of character witnesses.”
The juror understood M.O. to be providing his fellow jurors with a legal explanation. “After reading the definition the lawyer told the group something to the effect of, Mr. Newman is a bad guy or they would have asked different questions and you should infer that from the lack of questions asked of the character witnesses,” she explained.
Denver District Court Judge Brian R. Whitney denied Newman’s motion for a new trial, rejecting the argument that M.O.’s alleged actions prejudiced the jury.
Under the Federal Rules of Evidence, a juror cannot testify about what occurred during deliberations and judges may not receive statements about what a juror said in that phase of the trial. The intent of the rule is to prevent the invalidation of a jury’s verdict or harassment of individual jurors.
However, there are exceptions if “extraneous prejudicial information was improperly brought to the jury’s attention” or if “outside influence was improperly brought to bear” on a member of the jury.
Jurors can only consider evidence presented at trial and the court’s instructions, not extraneous information. The Colorado Supreme Court has defined the prohibited material as “legal content and specific factual information” that may be relevant to the case.
Tow, in the appellate court’s opinion, noted various instances of misconduct after jurors used the dictionary — and in one case, the Bible — to assist their understanding in a manner that fell outside the instructions of a judge. The Colorado Supreme Court, however, has never clarified what constitutes prohibited “legal content.”
A 2011 decision by the Court of Appeals in People v. Holt upheld a defendant’s guilty verdict for vehicular eluding after one juror alleged during deliberations that in his experience, the offense was “a very minor violation.” In Holt, the appellate panel decided that the term prohibited those “trained in certain aspects of the law” from sharing that knowledge with the jury. The juror in the Holt case did not fit that description.
For juror M.O. in Newman’s case, the Court of Appeals acknowledged that it was not forbidden for a lawyer’s training to guide his own thinking on the case. But “rather than drawing from his background legal knowledge, Juror M.O. conducted outside research and shared the results of that research with other jurors,” Tow wrote.
The affidavit presented other statements of M.O.’s alleged misconduct. He and another juror reportedly said the cheek swab that produced Newman’s DNA had to come from another felony conviction. The Court of Appeals determined this was not “legal content.” In another instance, M.O. told other jurors incorrectly why prosecutors did not pursue a line of questioning about Newman’s sex life. The appellate judges agreed it was close to presenting a statement of fact about the law and deserved a hearing in the trial court.
Kate S. Hulme, an attorney with Cannon Law in Fort Collins, called the behavior of M.O. shocking because it circumvented the standard jury instruction that jurors "cannot be investigators outside the courtroom." She explained that information which may be relevant — but is nonetheless excluded at trial — "does not get a backdoor in because we want to ensure that we are convicting individuals for what they have done and not who they are."
The panel instructed the Denver District Court to hold a hearing determining whether M.O. introduced prejudicial legal content into the deliberations. If decided in the affirmative, they ordered a new trial for Newman.
The case is People v. Newman.
This article has been updated with additional comments.