Episode 18: Trivial juror misconduct and the ineffective assistance of counsel claim

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Episode 18 of The SM JUROR Podcast on Juror Misconduct Law: Trivial juror misconduct and the ineffective assistance of counsel claim

People v. Colville, No. 336405, 2018 WL 6252034 (Mich. Ct. App. Nov. 29, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in People v. Colville, No. 336405, 2018 WL 6252034 (Mich. Ct. App. Nov. 29, 2018).  The issues we’re going to discuss are juror comments made to the trial court’s law clerk and ineffective assistance of counsel claims based on trivial juror misconduct.


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 18, we’re going to be looking at the case of People v. Colville, which is out of Michigan. The issues we’re going to discuss are juror comments made to the trial court’s law clerk and ineffective assistance of counsel claims based on trivial juror misconduct.  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. Colville.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 18 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. Colville, which is out of Michigan.

This case was decided on November 29, 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.

In this case, the defendant’s convictions included manufacturing marijuana over 45 kilos, possession of a firearm during the commission of a felony and two counts of maintaining a drug house.

The juror misconduct issue he took up on appeal involved something that I believe occurs quite frequently.  The proofs were closed and the jury was dismissed for their lunch break.  At the courthouse cafeteria, a juror was in line with the trial court’s law clerk in front of her.  She tapped the law clerk on the shoulder and then made a comment about one of the witnesses.  The law clerk told her that she could not speak with the jurors and then informed the trial court.

So this contact seems pretty trivial, but the juror did reach out to a non-juror to discuss a witness in the case.  Here, we’ll focus on how the trial court handled the situation, and the defendant’s efforts to tie this incident with an ineffective assistance of counsel claim to get a new trial, arguing that defense counsel failed to pursue and advance the juror misconduct issue.

I also want to point out that the defendant did not preserve the juror misconduct issue or the ineffective assistance of counsel issue in the record, so his appeal requested that the Court of Appeals review the matter for plain error.  The Court of Appeals found no error in the trial court’s method of handling the situation or defense counsel’s performance, so the convictions were affirmed.

Now after the cafeteria incident, the law clerk tells the judge and once court was back in session, the trial court addressed the jury informing them that the law clerk reported that a juror tapped her on the shoulder in line for lunch at the cafeteria and made a comment about the witness.  The trial court explained to the jury that the law clerk wasn’t being rude and added that the law clerk, like the attorneys, the parties and the witnesses, was specifically instructed not to talk to the jury and that the jury should not talk to anyone about the case to get information or commentary.

Now if we step back a moment, I want to point out a few things from this event.  First, note that the trial court did not mention what the comment was that the juror made to the law clerk.

Second, also note that the trial court, in its discretion, chose to address the jury as a group and not single out the specific juror who initiated contact with the law clerk.  There could be several reasons for this.  Remember, proofs are closed and the jury is about to be instructed on the case.  Maybe the judge didn’t want the juror to be embarrassed.  Or maybe, the comment was just so trivial.  But regardless, what’s important here is that the juror’s effort to start a conversation with the law clerk about a witness was shut down immediately by the law clerk, who stated that she could not talk to the juror.

Third, besides addressing the jury, the trial court admonished them, reminding them that they should not talk to anyone about the case.  The admonishment is also important because proofs are closed and the jury is about to deliberate and if there is a recess during deliberations, the trial court is again reminding the jurors not to talk to anyone.

Now, that was a list of what the trial court did.  Next, let’s look at the attorneys.  Neither party objected to how the trial court handled the situation or asked to question the juror.  Now, it’s true that the opinion does not disclose who the juror was, and we don’t know if the parties actually knew who the juror was.  But there is no indication on the record that trial counsel moved to have the juror identified or questioned about the incident.  And this fact is important because it forms the basis for the defendant’s ineffective assistance of counsel claim that his attorney did not pursue the juror misconduct issue resulting in the denial of a fair and impartial trial.  That’s the defendant’s argument.

Now in order for the ineffective assistance of counsel claim to be valid, we have to examine the juror misconduct issue.  And when we do so, remember that the inquiry is not just that a juror committed juror misconduct, but also whether that juror misconduct prejudiced the defendant.

So the issue becomes – does every instance of juror misconduct warrant relief?  And the answer is no.  And, believe it or not, many attorneys don’t know that and move for a new trial or a mistrial with the mentality that the presence of juror misconduct literally turns into their client’s “get out of jail” card.

The law is that only those juror misconduct acts that “affect the impartiality of the jury or disqualify them from exercising the powers of reason and judgment warrant some type of relief.”  And I also want to point out another misconception and that is that the relief is not necessarily a new trial. It could be the removal of a juror, further questioning or simply an admonishment or jury instruction.  Remember again that it’s the trial court, who in its discretion, decides the appropriate remedy under the circumstances.

So trivial acts of juror misconduct do not warrant relief and that’s because those trivial acts do not cast doubt on whether the defendant received a fair and impartial trial or whether the verdict was legitimate.

Here, the juror tapped on the shoulder of the law clerk and initiated some conversation about a witness, but the law clerk quickly shut down the conversation by saying that she could not talk to the juror.  There was no conversation about the witness.  Only an unsuccessful attempt was made.  This is a trivial act of juror misconduct and there is no harm to the defendant.

Now when we further examine the law clerk’s actions, we see that she informed the trial court about what happened.  We can definitely surmise that the law clerk, who the opinion says is a trusted member of the trial court’s staff, told the judge which juror it was and we can also make a reasonable educated guess that the law clerk reported exactly what was said.  And that’s where we further understand that the issue was trivial because the trial court chose only to address the jury as a group and admonish them not to talk to others.

Additionally, remember that in order to get a new trial based on juror misconduct, a party must show that there was juror misconduct and that that juror misconduct prejudiced the defendant’s right to a fair and impartial jury.  There is nothing in the record that demonstrates that the defendant was somehow prejudiced by what occurred in the lunch line at the court cafeteria.

And when we get back to the fundamentals of juror misconduct law, we can see that no jury member was exposed to any extraneous evidence.  An example of extraneous evidence in this situation would have been if the law clerk also commented on the witness – but that didn’t happen.

The defendant also argued that the trial court erred by refusing to hold an evidentiary hearing or question all the jurors to further investigate the juror misconduct issue.  But because the incident is trivial and no conversation was actually had, there is no error in the trial court’s refusal to investigate further.

As to the ineffective assistance of counsel claim, the Court of Appeals found that defense counsel did not act ineffectively in failing to question the juror or the jury about the cafeteria incident.  The appellate court noted that defense counsel had the opportunity to observe the jury when the trial court addressed them and said it would not substitute its judgment for that of trial counsel on whether to object or question the juror because the appellate court had the benefit of hindsight in assessing his performance.

But, it didn’t matter, because there was no evidence that this trivial juror misconduct prejudiced the defendant and adversely affected his right to a fair and impartial trial.  Simply put, juror misconduct was not the defendant’s “get out of jail” card.

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.

Because the ONLY evidence you want the jury to consider … is in the courtroom.


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