A Legal Analysis of the Juror’s Allegations & the White House Petition in the Steven Avery Case
A few people have asked me about yesterday’s development in the Steven Avery/”Making a Murderer” case. Specifically, according to co-creator Laura Ricciardi, a juror
“told us that they believe Steven Avery was not proven guilty….” “They believe Steven was framed by law enforcement and that he deserves a new trial, and if he receives a new trial, in their opinion it should take place far away from Wisconsin.
There was behind-the-scenes vote-trading going on during the trial, the juror told the filmmakers, and the verdicts on each count were “a compromise.”
“That was the actual word the juror used and went on to describe the jurors ultimately trading votes in the jury room and explicitly discussing, ‘If you vote guilty on this count, I will vote not guilty on this count,'” Ricciardi said….
The juror also said he or she voted to convict, but claimed the decision came under duress.
“They told us really that they were afraid that if they held out for a mistrial that it would be easy to identify which juror had done that and that they were fearful for their own safety,” [co-creator Moira] Demos said.
These are obviously troubling allegations, but they are not the type of allegations that will lead to a new trial, just as a petition to the President won’t lead to a pardon.
Let’s start with the former point. Similar to its federal counterpart, Wisconsin Rule of Evidence 906.06(2) states that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the juror’s or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.
“Extraneous prejudicial information is commonly understood to mean information the jury receives outside the courtroom.” United States v. Stewart, 317 F.Supp.2d 426, 431 (S.D.N.Y. 2004). Put another way, extraneous prejudicial information is “information that was not admitted into evidence but nevertheless bears on a fact at issue in the case.” Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006).
Imagine that a juror during a trial read on the internet that (1) the defendant failed an inadmissible polygraph test; or (2) the defendant made an inadmissible, unMirandized confession. Both of these would constitute extraneous prejudicial information and permit the juror to impeach the jury’s guilty verdict after it had been rendered.
An improper outside influence “is an outside influence upon the partiality of the jury, such as ‘private communication, contact, or tampering…with a juror….'” Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006). Imagine that, during trial, (1) the bailiff tells the jurors that they should find the defendant guilty; or (2) the victim’s brother threatens a juror if he doesn’t return a guilty verdict. Both of these would constitute improper outside influences and permit the juror(s) to impeach the jury’s guilty verdict after it has been rendered.
Conversely, jurors cannot testify concerning internal influences from other jurors, no matter how improper. See, e.g., Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010) (precluding jury impeachment concerning allegations that a juror who wanted to vote “not guilty” was verbally harassed and physically threatened by other jurors).
Therefore, assuming that the duress and fear that the juror felt in the Avery case came from within the jury, the juror would not be able to impeach the verdict. That seems to be the case based on the allegations in the linked article; if someone from the State caused this duress, that would constitute an improper outside influence.
What about the allegations of jurors trading votes and reaching a compromise? This is known as a “compromise verdict,” and the Advisory Committee Note to Federal Rule of Evidence 606(b) indicates that “testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382 (1912).
That then takes us to the petition to the President. The President can only pardon federal convictions. This power is contained in Article II, Section 2, Clause 1 of the Constitution, which states that
The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
This isn’t to say that supporters should refrain from symbolically signing the petition to show their support. It’s just to say that, as in the Adnan Syed case, President Obama cannot issue a pardon.
-CM