Episode 19: Does a text message to a juror, “Please don’t send my brother to jail,” result in jury tampering?

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Episode 19 of The SM JUROR Podcast on Juror Misconduct Law: Does a text message to a juror, “Please don’t send my brother to jail,” result in jury tampering?

Wallace v. Superintendent Unknown Banks, No. 3:15CV669-CWR-RHW, 2018 WL 3852624 (S.D. Miss. July 9, 2018), report and recommendation adopted sub nom. Wallace v. Banks, No. 316CV00669CWRRHW, 2018 WL 3846324 (S.D. Miss. Aug. 13, 2018). 

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in Wallace v. Superintendent Unknown Banks, No. 3:15CV669-CWR-RHW, 2018 WL 3852624 (S.D. Miss. July 9, 2018), report and recommendation adopted sub nom. Wallace v. Banks, No. 316CV00669CWRRHW, 2018 WL 3846324 (S.D. Miss. Aug. 13, 2018).  The issues we’re going to discuss are text messages to a juror, jury tampering, improper communications, and procedural bars.


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 19, we’re going to be looking at the case of Wallace v Superintendent Unknown Banks, which is from the US District Court for the S.D. of Mississippi.  The issues we’re going to discuss are text messages to a juror, jury tampering, improper communications, and procedural bars.  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 Wallace v. Superintendent Unknown Banks.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 19 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of Wallace v. Superintendent Unknown Banks, which is from the US District Court for the S.D. of Mississippi.

 This case was decided on July 9, 2018, with the report and recommendations adopted on August 13, 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.

Today we’re going to be talking about text messages to a juror and before we start, I want to point out some critical questions you should always ask if you encounter this type of situation:

First, who sent the text message to a juror and how did that person have the juror’s cell phone number?  Was the sender a friend, a party, a witness or someone else?  This is important because if the sender wasn’t someone known to the juror, then we need to find out how this person got the juror’s number.  By exploring the relationship the sender had to the juror, if any, you may uncover evidence of an undisclosed juror bias.

Second, when was the text message sent to the juror?  Was it during the trial or before jury selection?  Was it during deliberations and/or before the verdict?  Was it some time after the verdict, but referenced a communication before the verdict?  These are all critical inquiries because they address whether the text message could have had any impact on the juror while the juror was considering the case.

Next, what was the substance of the text message?  Did it involve the trial?  Did it involve a matter warranting the excusal of the juror, like a family emergency or a witness texting with the juror before or after testimony?  Was the juror exposed to some type of extraneous evidence through that text message?  Did the text message involve a request or even a threat?

And finally, if you are considering a motion for new trial or a motion for mistrial based on juror misconduct from some sort of texting incident with the juror, you need to decide and strategize how you want evidence of the text message to be preserved in the record.  What I mean by this is whether you will have the juror or the sender testify about the text message or the text message exchange.  If the juror is barred from testifying about the text message because it occurred during deliberations and there are procedural rules which may bar this type of testimony, you may want to have the sender testify.  Or, don’t forget the possibility of stipulations by the parties about the text message or even taking a photograph of the text message, but remember that you will need to meet the foundational and authentication requirements of admitting that photo into evidence.  If the text message is really critical, you may need to subpoena cell phone records or even utilize the services of companies that can retrieve text messages, even if they were erased.

Now, I just want you to have those planning strategies tucked away in the back of your head as we discuss this case.

This case was being heard on a petition for writ of habeas corpus involving some alleged jury tampering.  Defendant Wallace was convicted of one count of a drive-by shooting, one count of shooting into a motor vehicle, and one count of shooting into a dwelling.

On the day before the last day of trial, a juror received a text message that said, “Please don’t send my brother to jail.”  The juror didn’t advise the trial court about it until after the verdict.  Defense counsel claimed that the juror had some motive or bias in not sharing the information.  The trial court held a hearing where the juror was questioned by the court and counsel for both parties.  The trial court found that any claim for juror misconduct was based on speculation and that the juror had not been influenced.

Now, let’s step back a moment to analyze the context of what occurred here.  A juror receives a text message on the day before the trial was ending, asking the juror not to send their brother to jail.  So we can speculate that the text message is from a family member of the defendant, since it used the words, “my brother”, but I want to point out that it is speculation because anyone could have sent the juror that message and used the words, “my brother,” to make it appear that a family member sent it.  So given that context, you might want to know how the sender got the juror’s cell phone number.  And you might want to know if the juror knew the sender because that certainly would be an important fact which should have been disclosed during voir dire.

As we continue with the events, the opinion states that the juror did not advise the court about the text message until after the verdict and it’s interesting because defense counsel claimed that the juror had some motive or bias in not sharing the information.

I want to stop right here for a moment because it’s important to examine the defendant’s theory on the juror misconduct issue.  The theory focuses on the alleged bias of the juror in choosing not to share the text message.  When we talk about any alleged juror bias, the burden of proof is on the complaining party, here the defendant, to prove that the alleged juror bias denied him of his right to a fair and impartial trial.

Now at this point, we have no idea why the juror didn’t share the information before the verdict was entered.  But, somehow after the verdict was entered, the issue of the text message was brought to the court’s attention.  What’s critical though is that the trial court was presented with this issue of the text message saying, “Please don’t send my brother to jail,” so the trial court held a hearing where the juror was questioned by the court and counsel.

At that time, Wallace’s attorney represented to the trial court that there was no evidence to prove that anyone contacted the juror and that the alleged communication did not show up when police checked the juror’s cell phone.

When we look at what’s occurring at the trial court level, we see defense counsel making an admission that there was no evidence to prove that anyone contacted the juror.  What defense counsel is doing is arguing that no one related to the defendant did anything inappropriate by contacting the juror.  This is important because if the defendant’s family injected some sort of error into the trial, the defendant could not benefit from it.  So maybe, this explains why defense counsel’s theory focused on the juror’s alleged motive or bias in not disclosing the text message until after the verdict was entered, but we don’t know.

Now remember though, if there’s no such evidence that anyone contacted the juror, then there’s no type of improper communications and so there would be no basis to attack an adverse verdict based on juror misconduct under this scenario.  Additionally, we see that the police checked the juror’s cell phone and no such text message appeared.  We don’t know the scope of what the police did in checking the juror’s cell phone, but we also don’t know if such a text message actually existed, or if it was erased.

But based on these facts as they were known at that time, the trial court concluded that the alleged text communication did not justify granting a new trial and Wallace, the defendant, did not present clear and convincing evidence to contradict the state court’s finding.

On appeal to the Mississippi Court of Appeals, the defendant changed his theory from juror motive or juror bias and to an improper juror influence claim or jury tampering.  Now whenever you change a theory or present a new theory on appeal, you need to be aware that you’re going to face the problem of issue preservation and procedural bars.

The Mississippi Court of Appeals held that since the defendant brought a claim for improper juror influence for the first time on appeal, he was procedurally barred from pursuing it.  Even though the Court of Appeals found that the claim was procedurally barred, it considered the claim on its merits and found that the defendant failed to cite any authority supporting a finding of error, and so the writ for habeas corpus was denied.

If we examine the new theory of improper juror influence or jury tampering, remember again, that the defendant still has the burden of proof on that issue and we have to look at what occurred at the trial court level to determine if there was any error.  The focus would be on the juror’s testimony when the trial court held its hearing on the issue.  There had to be evidence in the record which supported a claim of improper juror influence, but the record did not support it.

So even though the defendant changed his theory of the juror misconduct texting issue from juror bias to jury tampering or improper juror influence, he still had to present evidence to support it, and he did not meet his burden of proof.

That being said, there are a couple of points I want to make.  Let’s take a look at the actual text message: “Please don’t send my brother to jail.”  As explained by the Mississippi Court of Appeals, “[t]he fact that the defendant’s friends or family would not like to see him convicted would not be new information to a reasonable juror, nor was there any overt threat.”

So if we examine the substance of the text message itself, we find no exposure to any extraneous evidence.  Regardless of the identity of the sender, the substance of the text message does not communicate anything new because it’s reasonable to conclude that the defendant’s family members would not want him to go to jail.  Additionally, there’s no threat involved.  If a threat existed, then the burden of proof would be to show that the threat itself exerted sufficient pressure on the juror who rendered his or her verdict due to fear of the alleged threat and not based on the evidence.

So here, the petition for habeas corpus was denied.

Remember those strategic questions we discussed in the beginning of our show related to issues of text messages to a juror?  Not only must you decide how to appropriately present the evidence of the texting, but also you must develop a theory or theories at the trial court level with evidentiary support which preserves the issue for appeal.

Here, at the trial court level, defense counsel argued juror bias or juror motive in waiting to notify the court of the text message.  At the hearing, the juror was questioned by the trial court and the parties.  It was the defendant’s burden of proof to present evidence supporting his theory of juror motive or juror bias or any other juror misconduct claim.  He presented evidence that no one contacted the juror, adding that the police could not find any evidence of the text message on the juror phone.  That being said, the record did not demonstrate any evidence supporting juror motive or juror bias.  Therefore, the defendant did not meet his burden of proof to warrant a new trial and the change in his theory on appeal only made the issue worse because his new theory was procedurally barred.

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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