Today, we learned that Juror #7 from the Scott Peterson murder trial will testify at Peterson’s upcoming hearing for a new trial beginning on February 25th due to possible juror misconduct by Juror #7. Juror #7, Richelle Nice, will be called as the first witness for the defense.
That’s a big deal!
Previously, juror #7 had stated that she would not testify pursuant to her fifth amendment right to remain silent. Why the change? The prosecution advised the court and Peterson’s counsel that she will be given immunity; thus, she will not face criminal prosecution for any potentially false or withheld information during jury selection. Another words, if she failed to disclose information or misrepresented information relating to her ability to be an impartial juror on the juror questionnaire or otherwise, she would not be prosecuted for, say, perjury, for example. If she is given immunity, she will be required to answer the questions asked when she testifies.
She will be represented by her own private counsel at the hearing and will be subject to examination by all the parties, including the judge. Her credibility, like every witness who takes the stand, will be at issue and evaluated by the judge who will decide whether Peterson gets a new trial.
Get ready for DeJa Vu!
We will also likely hear from Peterson’s prior criminal attorney, Mark Geragos, according to Peterson’s attorney. He will likely be asked whether he would have challenged Juror #7 had he known, as alleged, that she had been beaten by her boyfriend while pregnant and been involved in prior litigation which was not disclosed on the juror questionnaire or during voir dire. If true, most attorneys would have challenged Juror #7 given a potential similarity to Laci Peterson to protect Scott Peterson’s right to a fair trial including impartial jurors.
Depending on Juror#7’s testimony, we may also hear from juror #5 as well, who although excused from the murder trial, may have had conversations with Juror #7 relevant to her potential bias, prior experiences, impartiality or lack thereof. The defense has also indicated that in rebuttal, they may call several journalists who interviewed juror #7 to support their claim of juror misconduct.
Both sides have indicated they will be calling several witnesses and submitting many exhibits. The hearing is scheduled to last for 5 days from Feb 25 to March 4th.
Motions for a new trial happen all the time, but, few are based on statements made by a juror many years after conviction that appear to question her ability to be impartial, truthful, and the integrity of the trial process and verdict. Yet, the question remains, does Juror #7 alleged misconduct amount to “prejudicial misconduct”, thus, denying Peterson’s right to a fair trial—-did Peterson have 12 impartial jurors? Criminal cases require 12 jurors to convict a defendant. Otherwise, a conviction can be thrown out and a new trial ordered.
Stay tuned, we may learn more as we have another hearing on Feb 17th regarding further motions and matters.
Simply my opinion, what say you?
Read my interview with KRON4 News San Francisco
Will Ghislaine Maxwell, who was convicted on December 29, 2021 on 5 counts in a sex-trafficking case in New York Federal Court, get a new trial due to alleged juror misconduct?
Yes. possibly, if….
Juror #50 failed to disclose or denied he was a victim of sexual abuse on the juror questionnaire.
Why does that matter?
A defendant has a right to a fair trial by unbiased, impartial jurors pursuant to the 6th Amendment of the US Constitution. Can a juror or jurors, as there are reportedly now 2 jurors, who were victims of sexual abuse be unbiased or impartial in a sexual abuse and trafficking case as the Maxwell trial? Probably not. If it amounts to prejudicial juror misconduct, a new trial for Maxwell may be granted.
But, that’s not my call.
It is Judge Nathan’s call to make upon an evidentiary hearing and upon consideration of the evidence and testimony presented at the hearing. Specifically, for example, how did the juror(s) answer the question on Maxwell juror questionnaire, “Have you, or a friend, or family member ever been the victim of sexual harassment, sexual abuse or sexual assault?” If the juror answered “No”, yet, disclosed sexual abuse in jury deliberation, as alleged by Maxwell’s defense, and reportedly stated by Juror #50, then, it is possibly actionable juror misconduct requiring a mistrial. A juror doesn’t get a pass because they “flew thru” the juror questionnaire, as stated and explained by Juror #50. Yet, untruthful responses on a questionnaire may not be enough for a mistrial. (See Warger v. Shauers 574 US 40 (2014).
When a juror fails to disclose or misstates information on a juror questionnaire, it deprives the attorney’s the opportunity to challenge/remove a juror or further question a juror to ferret out any potential bias that could render a juror lacking impartiality and thus, deny the defendant’s right to an impartial jury and a fair trial.
Keep in mind, it is an objective test not a subjective test. So, even though, a juror may claim their sexual abuse did not influence their verdict, the test is whether a reasonable juror with said experience could be unbiased and impartial.
And, if…. jurors considered evidence not admitted at trial.
If a juror(s) verdict is based upon evidence other than the evidence admitted at trial, a mistrial and a new trial may be warranted. Apparently, juror #50 has stated that he shared his sexual abuse with his fellow jurors during deliberations to assist them in their understanding of the victim’s testimony.
However, in federal court, there is a long-standing federal rule 606 (b) also known as the “no-impeachment rule” that generally prohibits impeachment of verdicts by juror testimony about their deliberations. Judges are usually not allowed to conduct any probing inquiry of jurors’ deliberations, conduct or their mental processes to determine how they achieved their verdict. (See also McDonald v. Pless, 238 US 264 (1914). Another words, juror affidavits, for example, attesting to misconduct in deliberations is usually inadmissible, unless the defendants right to a fair trial has been denied (i.e., racial bias by a juror revealed in deliberations, See Pena-Rodriguez v. Colorado 580 US _(2017)).
Why? Courts want to protect privacy of deliberations & foster candor during deliberations without fear of decision/reasoning becoming public knowledge. Also, courts want to discourage post-trial harassment of jurors and not allow interference with the finality of litigation by encouraging losing litigants to tamper with verdicts.
No doubt, the defense will pursue all avenues for appeal including possible juror misconduct.
If you’d like more law on juror misconduct, please read my prior post on another case involving potential juror misconduct Scott Peterson Re-Trial Likely Says Legal Analyst.
Meanwhile, stay tuned, the defenses motion for a new trial is due January 19 and the prosecution’s reply is due February 2.
Simply my opinion, what say you?