Martinez v. Shinn et al, No. 2:2020cv00517 - Document 23 (D. Ariz. 2020)
Court Description: ORDER granting Respondents' 13 Motion to Preclude Juror Contact and 14 Motion for Order Precluding Defense Team From Contacting Victims as set forth in this Order. Signed by Judge Diane J Humetewa on 7/1/2020. (See Order for details.) (LFIG)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gilbert Martinez, 9 Petitioner, 10 11 v. 12 David Shinn, et al., No. CV-20-00517-PHX-DJH ORDER DEATH PENALTY CASE 13 Respondents. 14 15 Before the Court are Respondents’ Motion to Preclude Juror Contact (Doc. 13) and 16 Motion for Order Precluding Defense Team from Contacting Victims (Doc. 14). Petitioner 17 Gilbert Martinez opposes the motions. (Docs. 18, 19.) 18 1. Motion to Preclude Juror Contact 19 Respondents ask the Court to enter an order precluding Martinez’s defense team 20 from contacting his trial jurors absent leave of Court based on a showing of good cause. 21 Martinez contends that there is no binding authority for such a request. (Doc. 18 at 7.) He 22 also argues that interviewing jurors is a “necessary component” of investigating his case.1 23 (Id. at 2.) 24 Federal courts have long recognized that “very substantial concerns support the 25 protection of jury deliberations from intrusive inquiry.” Tanner v. United States, 483 U.S. 26 27 28 1 Martinez also asserts that the order sought by Respondents would improperly burden the jurors’ First Amendment rights. (Doc. 18 at 11.) The Court agrees with Respondents that Martinez has no standing to raise such a claim on behalf of the jurors. 1 107, 127 (1987). In Tanner, the Supreme Court acknowledged that post-verdict 2 investigation into jury misconduct would lead in some instances to the discovery of 3 improper juror behavior, but expressed concern that allegations “raised for the first time 4 days, weeks, or months after the verdict, [would] seriously disrupt the finality of the 5 process” and could undermine “full and frank discussion in the jury room, jurors’ 6 willingness to return an unpopular verdict, and the community’s trust in a system that relies 7 on the decisions of laypeople.” Id. at 120–21. 8 Generally, a verdict may not be impeached on the basis of the jury’s internal 9 deliberations or the manner in which it arrived at its verdict. Traver v. Meshriy, 627 F.2d 10 934, 941 (9th Cir. 1980). Rule 606(b) of the Federal Rules of Evidence is grounded in this 11 common-law rule against admission of jury testimony to impeach a verdict. On the other 12 hand, although jurors may not be questioned about their deliberations and most matters 13 related thereto, they may be questioned regarding any extraneous influence on their verdict. 14 Tanner, 483 U.S. at 117; Traver, 627 F.2d at 941. Accordingly, Federal Rule of Evidence 15 606(b) allows jury testimony in limited circumstances to show that (1) extraneous 16 prejudicial information was improperly brought to the jury’s attention, (2) an outside 17 18 19 20 21 influence was improperly brought to bear upon any juror, or (3) there was a mistake in the verdict form. See Tanner, 483 U.S. at 121; Fed. R. Evid. 606(b). An exception to Rule 606(b) also exists where a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.2 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017). Martinez contends that there is no authority prohibiting his federal habeas counsel 22 23 24 25 from interviewing jurors from his state criminal trial to discover admissible evidence of juror misconduct, or requiring him to show good cause prior to doing so. Nonetheless, despite there being no specific prohibition, post-verdict interviews with jurors are not looked on favorably in the Ninth Circuit, Hard v. Burlington Northern R.R., 812 F.2d 482, 26 27 28 The Court rejects Martinez’s argument that information obtained from jurors is admissible with respect to claims of ineffective assistance of counsel. See Garza v. Ryan, No. CV-14-01901-PHX-SRB, 2016 WL 4591854, at *2 (D. Ariz. Sept. 2, 2016) (collecting cases). 2 -2- 1 485 (9th Cir. 1987), abrogated on other grounds by Warger v. Shauers, 574 U.S. 40 (2014), 2 and the district courts have “‘wide discretion’ to restrict contact with jurors to protect jurors 3 from ‘fishing expeditions’ by losing attorneys.” See United States v. Wright, 506 F.3d 4 1293, 1303 (10th Cir. 2007) (quoting Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 5 (10th Cir. 1986)). 6 While this Court’s local rules do not prohibit Martinez’s counsel from contacting 7 and interviewing jurors from his trial, neither do they specifically authorize such contact. 8 The local rules do recognize that approval for the interview of federal jurors will only be 9 granted when proposed written interrogatories are submitted to the court within the time 10 granted for a motion for a new trial, and only upon a showing of good cause. See LRCiv 11 32.9(b) (citing Fed. R. Evid. 606(b)). While there is no corresponding rule prohibiting 12 counsel from invading the provenance of state jurors in federal habeas proceedings, the 13 absence of a rule is not dispositive, as the Court is no less concerned with the protection of 14 state jurors than federal jurors, and has the discretion to address these concerns on a case 15 by case basis. 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to the policy concerns expressed in Tanner, there are “very cogent reasons” for requiring a preliminary showing of illegal or prejudicial intrusion into the jury process before allowing counsel to conduct post-trial interviews. These include protecting the jury from post-verdict misconduct and the courts from time consuming and futile proceedings; reducing the chances and temptations for tampering with the jury; and increasing the certainty of verdicts. Wilkerson v. Amcon Corp, 703 F.2d 184, 185–86 (5th Cir. 1983) (“We continue to decline to ‘denigrate jury trials by afterwards ransacking the jurors in search of some ground . . . for a new trial’ unless a preliminary showing is made.”) (additional citation omitted). The reluctance of courts to inquire into the conduct of jurors during deliberations is also “to avoid harassment of jurors, inhibition of deliberation in the jury room, a deluge of post-verdict applications mostly without real merit, and an increase in opportunities for jury tampering; it is also to prevent jury verdicts from being made more uncertain.” King v. United States, 576 F.2d 432, 438 (2d Cir. 1978) (“To overcome this reluctance and to authorize a post-verdict inquiry, there must be ‘clear evidence,’ ‘strong -3- 1 evidence,’ ‘clear and incontrovertible evidence,’ ‘substantial if not wholly conclusive 2 evidence.’”) (additional citation omitted). Finally, the Ninth Circuit has held that “there is 3 no federal constitutional problem involved in the denial of a motion to interrogate jurors 4 where . . . there has been no specific claim of jury misconduct.” Smith v. Cupp, 457 F.2d 5 1098, 1100 (9th Cir. 1972). 6 Therefore, the Court finds that the proper way for Martinez to proceed is first to 7 make a preliminary showing that extraneous prejudicial information or outside influence 8 was improperly brought to the jury’s attention, or evidence that a juror was motivated by 9 racial animus, and seek leave of the court to approach the jury. See Hard, 812 F.2d at 485 10 n.3. Good cause may be shown by satisfying the requirements of the exceptions stated in 11 Rule 606(b) and Pena-Rodriguez. 12 Martinez asserts that the holding in Pena-Rodriguez renders the above analysis 13 “inapposite.” (Doc. 18 at 8.) The Court disagrees. Pena-Rodriguez simply added an 14 exception to Rule 606(b)’s limitations on post-verdict juror testimony. The holding did not 15 foreclose a court from imposing a good cause requirement on juror contact. See Mitchell v. 16 United States, 958 F.3d 775, 787 (9th Cir. 2020) (“[I]n cases where there has been no 17 18 19 20 21 22 23 24 25 26 27 28 showing of juror misconduct, we have held that a district court ‘d[oes] not abuse [its] discretion in refusing to allow postverdict interrogation of jurors.’”) (quoting United States v. Eldred, 588 F.2d 746, 752 (9th Cir. 1978)); Smith, 457 F.2d at 1100. 2. Motion for Order Precluding Defense Team from Contacting Victims Respondents move the Court for an order precluding Martinez’s defense team from directly contacting any victim in this case and directing that the team instead initiate any such contact through the Office of the Arizona Attorney General. (Doc. 14 at 2.) In support of their request, Respondents cite provisions of state and federal law, including A.R.S. § 13–4433(B), which provides that “[t]he defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office,” and the Crime Victims’ Rights Act (CVRA), which affords state crime victims in federal habeas cases “the right to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8). -4- 1 Martinez opposes the motion, arguing that the request is not supported by state or 2 federal law, that counsel are obligated to perform an investigation that may include contact 3 with victims, and that the request is premature. (Doc. 19.) The Court disagrees. 4 In other capital habeas cases in this district, the court has considered and rejected 5 these arguments, ordering petitioners to obtain consent through Respondents’ counsel 6 before contacting a victim and, in the event a victim did not consent, ordering briefing on 7 the applicability of Arizona’s victims’ rights laws. See, e.g., Sansing v. Ryan, No. 11-CV- 8 1035-PHX-SRB (D. Ariz.); Chappell v. Ryan, No. CV-15-00478-PHX-SPL (D. Ariz.); 9 Pandeli v. Ryan, No. CV-17-1657-PHX-JJT (D. Ariz.). In Sansing, the court explained that 10 its “directive requiring Petitioner to obtain consent from Respondents’ counsel to contact 11 victims furthers the rights to dignity and privacy set forth in § 3771(a)(8). It is a reasonable 12 limitation that does not unfairly disadvantage Petitioner.” Sansing, No. 11-CV-1035-PHX- 13 SRB (D. Ariz.) (Doc. 29); see Roseberry v. Ryan, No. 15-CV-1507-PHX-NVW (D. Ariz.) 14 (Doc. 18). 15 Martinez’s arguments do not alter this analysis. Whether or not § 13–4433(B) 16 directly applies to these proceedings through the CVRA, the mechanism it establishes 17 18 19 20 21 22 23 24 25 26 furthers the goal of respecting a crime victim’s dignity and privacy without unduly burdening Martinez. See, e.g., Chappell, No. CV-15-00478-PHX-SPL (D. Ariz. Jul. 21, 2015) (Doc. 19). “Using counsel for Respondents to channel requests to contact victims, as contemplated by the CVRA itself, 18 U.S.C. § 3771(b)(2)(B)(i) and (d)(1), does not unduly burden [petitioner’s] access to the victims.”3 Pandeli v. Ryan, No. CV-17-1657PHX-JJT (D. Ariz. Oct. 5, 2017) (Doc. 23). Finally, the Court rejects Martinez’s argument that an order granting the relief sought by Respondents would unconstitutionally burden habeas counsel’s First Amendment rights. (Doc. 19 at 11–12.) “[A]ttorneys are properly subject to an array of different restrictions and regulations that can have the effect of limiting their ability to obtain information—even potentially exculpatory information—from prospective 27 28 Under 18 U.S.C. § 3771 (d)(1), the “attorney for the Government may assert” the crime victim’s rights. 3 -5- 1 witnesses.” Johnson v. Ryan, No. CV-18-00889-PHX-DWL, 2018 WL 6573228, at *6 (D. 2 Ariz. Dec. 13, 2018) (citing Ariz. R. Prof. Conduct, ER 4.1(a); Ariz. R. Prof. Conduct, ER 3 4.2; and LRCiv 39.2(b)). 4 Accordingly, 5 IT IS HEREBY ORDERED granting Respondents’ Motion to Preclude Juror 6 Contact (Doc. 13). Martinez may not contact any jurors other than by leave of Court upon 7 a showing that extraneous prejudicial information or outside influence was improperly 8 brought to the jury’s attention, or where there is evidence of racial animus affecting the 9 verdict. See Fed. R. Evid. 606(b); Pena-Rodriguez, 137 S. Ct. at 869. 10 IT IS FURTHER granting Respondents’ motion for order precluding contact with 11 victims (Doc. 14). No person who is defined as a victim in this matter pursuant to Arizona 12 law shall be contacted by anyone working with or on behalf of Martinez or Martinez’s 13 counsel unless the victim, through counsel for Respondents, has consented to such contact. 14 If consent is not provided and Martinez nonetheless believes the contact is necessary, 15 Martinez may file a motion with the Court explaining the necessity for such contact. 16 Dated this 1st day of July, 2020. 17 18 19 20 Honorable Diane J. Humetewa United States District Judge 21 22 23 24 25 26 27 28 -6-
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