United States District Court, D. Arizona
DEATH
PENALTY CASE
ORDER
Honorable Diane J. Humetewa United States District Judge.
Pending
before the Court are Respondents' Motion to Set
Reasonable Page Limits and Motion to Preclude Juror Contact
(Docs. 11, 12) and Petitioner Tucker's Motion to Stay
Consideration of Respondents' Motion to Preclude Victim
Contact (Doc. 18). The Court, having heard argument on
February 21, 2018, rules as follows.
1.
Page limits
Respondents
ask the Court to set a limit of 200 pages for the petition
and answer and 75 pages for the reply. (Doc. 11 at 2.) They
argue that the Court has discretion to set page limits and
that page limits are consistent with the purposes of the
AEDPA to reduce delay and promote state-federal comity.
(Id. at 3-4.) They also cite page limits imposed in
other districts. (Id. at 3 n.2.)
The
District of Arizona has not placed page limits on habeas
petitions, and this Court declines to do so on an ad hoc
basis. Instead, the Court will refer Respondents' request
for page limitations in capital habeas cases for
consideration as a matter of District policy. See Morris
v. Ryan, No. 17-CV-926-PHX-SPL, Doc. 16.
2.
Juror contact
Respondents
request that the Court order Petitioner not to contact any
jurors other than by leave of Court upon a showing of good
cause that juror misconduct may have occurred during the
trial proceedings. (Doc. 12.)
Federal
courts have long recognized 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 Supreme
Court recognized that post-verdict investigation into jury
misconduct would lead in some instances to the discovery of
improper juror behavior, but expressed concern that
allegations “raised for the first time days, weeks, or
months after the verdict, [would] seriously disrupt the
finality of the process” and could undermine
“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.
Generally,
a verdict may not be impeached on the basis of the jury's
internal deliberations or the manner in which it arrived at
its verdict. Traver v. Meshriy, 627 F.2d 934, 941
(9th Cir. 1980). Rule 606(b) of the Federal Rules of Evidence
is grounded in this common-law rule against admission of jury
testimony to impeach a verdict. Although jurors may not be
questioned about their deliberations and related matters,
they may be questioned regarding any extraneous influence on
their verdict. Tanner, 483 U.S. at 117;
Traver, 627 F.2d at 941. Accordingly, Rule 606(b)
allows juror testimony in limited circumstances to show that
(1) extraneous prejudicial information was improperly brought
to the jury's attention, (2) an outside influence was
improperly brought to bear upon any juror, or (3) there was a
mistake in the verdict form. See Tanner, 483 U.S. at
121; Fed.R.Evid. 606(b).
As
Tucker notes, the Supreme Court recently recognized another
exception to the no-impeachment rule. In Pena-Rodriguez
v. Colorado, 137 S.Ct. 855, 869 (2017), the Court held
that “where a juror makes a clear statement that
indicates he or she relied on racial stereotypes or animus to
convict a criminal defendant, the Sixth Amendment requires
that the no-impeachment rule give way in order to permit the
trial court to consider the evidence of the juror's
statement and any resulting denial of the jury trial
guarantee.” The Court explained that “[n]ot every
offhand comment indicating racial bias or hostility will
justify setting aside the no-impeachment bar to allow further
judicial inquiry.” Id. Instead, “the
statement must tend to show that racial animus was a
significant motivating factor in the juror's vote to
convict. Whether that threshold showing has been satisfied is
a matter committed to the substantial discretion of the trial
court in light of all the circumstances. . .”
Id.
In a
previous ruling in another capital habeas case, this Court
granted Respondents' motion to preclude juror contact.
Cota v. Ryan, No. 16-CV-3356-PHX-DJH, Doc. 14.
Tucker, who is African American, asserts that the Court must
reexamine its analysis based on the intervening holding in
Pena-Rodriguez. (Doc. 17 at 4.) The Court disagrees.
There
is no statute, rule, or law prohibiting federal habeas
counsel from interviewing jurors to discover admissible
evidence of juror misconduct, or requiring a showing of good
cause prior to contacting jurors. Nonetheless, post-verdict
interviews with jurors are not looked on favorably in the
Ninth Circuit, Hard v. Burlington Northern R.R., 812
F.2d 482, 485 (9th Cir. 1987), abrogated on other grounds
by Warger v. Shauers, 135 S.Ct. 521 (2014), and district
courts have “‘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)).
While
Pena-Rodriguez added racial bias to the categories
of evidence not covered by the no-impeachment rule, it did
not circumscribe the court's discretion to oversee
post-verdict contact with jurors. “The practical
mechanics of acquiring and presenting such evidence will no
doubt be shaped and guided by state rules of professional
ethics and local court rules, both of which often limit
counsel's post-trial contact with jurors.”
Pena-Rodriguez, 137 S.Ct. at 869. In United
States v. Robinson, 872 F.3d 760, 770 (6th Cir. 2017),
the Sixth Circuit held that the district court did not err
when it failed to grant a new trial or conduct an evidentiary
hearing on the basis of the jury foreperson's racially
insensitive remarks to two African-American jurors ...