People v. Bohl, 2018 COA 152, decided on November 1, 2018.
Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in the case of People v. Bohl, 2018 COA 152, decided on November 1, 2018. The issues we’re going to discuss are the denial of a motion to access juror contact information to prove juror misconduct after an evidentiary hearing, text messages between a juror’s wife and an attorney which reveal a juror performed outside research, and the finding that a timeline of events is not extraneous evidence.
Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.” We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal. And, today in Episode 10, we’re going to be looking at the case of People v. Bohl, which is out of Colorado.
The issues we’re going to discuss are the denial of a motion to access juror contact information to prove juror misconduct after an evidentiary hearing, text messages between a juror’s wife and an attorney which reveal that the juror performed outside research, and the finding that a timeline of events is not extraneous evidence. Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at People v. Bohl.
Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 10 of the SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case People v. Bohl, which is out of Colorado.
This case was decided on November 1, 2018, and I’ll be sure to put the full citation of the case in our episode notes. And, if you can, please leave us a review because we want your feedback and want to provide value to our listeners. And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.
Now in this case, the defendant was convicted of first degree murder for killing his girlfriend. The day after the verdict, the deputy district attorney, who did not try the case, sent a text message to the jury foreman’s wife, because they already knew each other, and asked if her husband was willing to give any feedback on the case and the prosecutor’s performance at trial.
The juror’s wife sent the following text message back to him and this is a quote of the entire text message:
“The minute Mark got selected to sit on the case. I knew he would be the foreman too. I told him l was calling it. He took it very seriously too. It kind of amused me. He would come up and look up and research various scientific items that were presented, etc. He said he even mapped out his own timeline of events, so he could try to put it together in his mind. He said he’d be more than happy to share his feedback. He took lots of notes and still is frustrated by certain things.”
Following receipt of that text message, the DA’s office filed a Notice of Juror Contact and the defendant’s attorney moved for a new trial, or alternatively moved for an evidentiary hearing with the release the jury’s contact information.
Now, I want to step back just a second to look at the defendant’s strategy here. From the text message, it appears that the jury foreman did some outside research on something – we don’t know yet what that is – but we know that doing outside research on issues related to the trial is not allowed. Notice that the motion is done in the alternative. It’s a motion for new trial or alternatively, a motion for an evidentiary hearing with release of juror contact information.
Why is this important? You can see that the defendant’s attorney is trying to cover all the bases, and that’s obviously important, but also remember, that when you move the trial court to do something, and you present alternatives, and the trial court picks one of those alternatives, then you are going to have an extremely difficult time demonstrating that the trial court’s ruling in selecting one of your alternatives was an abuse of discretion. So just keep that in mind.
Here, the trial court chose to hold an evidentiary hearing where it heard testimony from the juror and his wife. After that evidentiary hearing, the trial court made various factual and credibility determinations and indicated that it would not allow other jurors to be subpoenaed.
Now when we’re talking about releasing other jurors’ contact information, the concern focuses not only on a jury member’s privacy, but also rules that provide that the parties cannot delve into the jury’s deliberative process.
Colorado Rule of Evidence 606(b) is based on Federal Rule of Evidence 606(b) and those rules discuss what jurors may and may not testify to when the validity of the verdict is attacked. If there’s an issue that the jury was exposed to extraneous prejudicial information, then jurors can testify about what occurred during deliberations relative to the receipt of that extraneous information. But, if there’s no evidence of any outside influence, then jurors cannot testify about what occurred during deliberations.
So, what does this mean in terms of moving to obtain the contact information of the other jurors in this case because the defendant wants to contact the other jurors to investigate potential jury misconduct? It means that you cannot put the cart before the horse. Things have to work sequentially.
Here the first step is the evidentiary hearing where the juror and his wife testified based on what the juror’s wife texted the deputy district attorney. After that evidence is received, the defendant must make a showing of good cause to have the court release any other juror contact information.
Now we know from the wife’s text message that the juror researched various scientific items and also made a timeline of events, so it’s important to verify, first, that outside research was done and then, second, determine whether that outside research related to issues in the case, meaning was that outside research relevant to the trial issues. We also have to determine what this timeline was all about.
So let’s look at the testimony at the evidentiary hearing. The wife testified that during trial, her husband had shown her that he was researching decomposition on the internet. She remembered seeing a webpage entitled “Decomposition” with a picture of a pig on it. This was the only time she saw her husband research any scientific item during the trial. She also testified that her husband created a timeline of events in the case, but she didn’t see it.
Now, let’s examine the testimony from the husband who was the jury foreman. The husband admitted that he researched decomposition of animals on the internet and told his wife about it. He was interested in decomposition from a personal standpoint because he was a hunter who grew up on a farm. He couldn’t remember the websites he looked at. He also testified that “he told his wife he was researching decomposition because it ‘was dealing with some sciences that are involved this week in the case.’” With regard to the timeline that he created, he described it as “chicken scratch” of some notes he made before the last day of trial. He didn’t have the notes and didn’t know if they were used for anything.
Now the pivotal points that came out of the juror’s testimony were that he said his research was “nothing specific to anything in this case”, and that he didn’t share his decomposition research or the timeline with the other jurors.
The trial court denied the defendant’s motion for new trial and indicated that it would not subpoena the other jurors and the Colorado Court of Appeals affirmed, finding that the trial court did not abuse its discretion in denying the motion and request. So we have 2 issues to deal with: the decomposition research and the timeline.
Before we get into that, I want to point out that the Colorado Court of Appeals noted that there was no established precedent for the standard of review for rulings related to a party’s request for juror contact information, but concluded that it should review the denial here for an abuse of discretion, which is consistent with other state and federal caselaw on this issue.
Now, with respect to the decomposition research, the opinion states the following, and I’m quoting this directly from the opinion:
“At trial, the parties agreed that the victim’s body was decomposed when the prosecution’s pathologist performed the autopsy. The key issue was how long the victim had endured blunt force trauma to the neck before she died, as the timing was used to argue whether Bohl had the requisite intent for first degree murder.”
The opinion also stated that because decomposition was not an issue at the trial, the juror’s research on animal decomposition did not prejudice the defendant. Also, the trial court found that there was no evidence that the extraneous evidence of the decomposition research had been presented to the jury. In other words, the trial court believed the husband’s testimony that he did not share his research with the other jurors.
But what about the fact that the husband did that internet research on decomposition. Isn’t that extraneous evidence that could have affected his verdict? Well no, actually, because, again, his internet research involved the decomposition of animals, and decomposition was not actually an issue in the case.
Second, as far as the timeline is concerned: The timeline was not extraneous evidence because it was based on information the juror received at trial. He didn’t base his timeline on any outside research that he did. He was making notes, which he is allowed to do.
Now what about this issue of the inconsistencies between what the wife reported in her text message and what the couple testified to during the evidentiary hearing? Her text message said that her husband did research on various scientific items, but the husband said he only researched the decomposition of animals.
The defendant argued that without contacting the other jurors, he was precluded from investigating whether the jury foreman was truthful in testifying that he did not share his research with the other jurors, especially since the foreman violated the court order not to conduct outside research.
The Appellate Court noted that the trial court made various factual and credibility determinations with respect to the testimony of the juror and his wife, which were supported by the record, so the appellate court cannot second-guess the trial court’s credibility determinations. The defendant also said that the he should be allowed to interview the other jurors to assess the husband’s credibility, arguing that the husband’s testimony was guarded for fear of being held in contempt for violating the court’s order not to conduct outside research, but that argument was mere speculation.
Remember, at the evidentiary hearing, it’s the trial court that determines the credibility of the witnesses because the trial court can assess their demeanor in how they testify. The appellate court cannot step into the trial court’s shoes for these types of determinations and neither can a party.
Now, another reason why there was no abuse of discretion in denying the request to contact other jurors was because ultimately, there was no evidence of juror misconduct. So, if there’s no juror misconduct, the request to contact other jurors is like a fishing expedition and invades the protections of Colorado Rule of Evidence 606(b).
So, let’s strategize how to handle the situation from beginning to end.
First, put evidence of possible juror misconduct in the record. This came from the wife’s text message which was attached to the DA’s Notice of Juror Contact. Then, move for an evidentiary hearing to have the wife and her husband testify. Confirm that outside research was done and ask for a copy of the timeline the juror created and move to admit it into evidence. With respect to the research, verify what the research was exactly and obtain website addresses or printouts.
Determine whether this research and the timeline were shared with other jury members. If so, get their names or juror numbers. Then, find out – Was the research done for personal reasons or to understand an issue at trial? In other words, was the research relevant to the issues at trial? Also ask whether the timeline was strictly based on information received at trial, or whether part of it was based on any outside research or influence.
Now, if the research is relevant to issues in the trial, make sure to develop the evidence in the record to support the argument that the research was prejudicial to your client’s right to a fair trial. Here, we never got to that stage because the trial court found that there was no juror misconduct.
Also, if you’re concerned about the credibility of the juror testifying, ask questions at the evidentiary hearing to flush out any potential issues so that they are developed in the record. Here, since the defendant argued that the juror was guarded when testifying due to a fear of being held in contempt, ask those types of questions and get the answers on the record, but understand that it is the trial court that assesses the credibility of the witnesses at the evidentiary hearing.
Finally, move for a new trial or a mistrial and get a ruling. Ideally, your motion should demonstrate, with supporting exhibits or evidentiary testimony, that the juror committed juror misconduct by doing internet research which was against the trial court’s orders because it related to issues in the case. And then argue that the research was prejudicial because it affected the juror’s verdict and was also shared with other jurors. This, obviously, could not be argued here because the internet research was not related to any issue in the case and the timeline was based on information obtained in the courtroom and the research and timeline were not shared with other jurors.
I do want to note that there was an interesting footnote in this opinion which indicated that the defendant did not appeal his conviction, nor the denial of his motion for new trial. Here, he limited his appeal to the issue of whether the trial court abused its discretion in denying him access to juror contact information. That’s not enough. The argument has to be developed all the way through to show that the denial of the access to juror contact information precluded him from developing evidence of juror misconduct which was prejudicial to his case and denied him a fair trial, such that he should have gotten a new trial or had his conviction overturned. You have to develop the argument to completeness. And remember, even if there’s juror misconduct, a conviction will stand unless the defendant can prove that that juror misconduct was, in fact, prejudicial.
And that’s it for our analysis of the juror misconduct issues in this case. If you like what you hear and want more, please subscribe to our podcast and leave us a review.
And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners. This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.
That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict. See you next time.
Remember to use the coupon code “podcast25”, exclusively for our podcast listeners, for $25 off our CLE entitled, “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events” which has been accredited & approved for 1.5 general CLE credit hours in 30 states. Click here to register for our CLE.
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