El Chapo’s attorneys seek new trial after report of jury misconduct

El Chapo’s attorneys seek new trial after report of jury misconduct
Cepropie via CNN
Joaquín “El Chapo” Guzmán

Joaquin “El Chapo” Guzman’s attorneys filed a motion Tuesday asking the court to review possible misconduct in light of a report that some jurors violated the judge’s prohibition against following news coverage of the Mexican drug lord’s federal trial as it unfolded.

In their motion, Guzman’s lawyers seek a hearing and possibly a new trial on the allegations of misconduct spelled out in a February 20 Vice News report, which hinged on an interview with one juror. That juror, who was not identified, claimed that “at least five fellow jurors violated the judge’s orders by following the case in the media during the trial,” according to Vice News.

The juror also told Vice News that some fellow jurors lied about whether they’d been exposed to certain information that was meant to be excluded from the trial. CNN has not independently verified the claims.

“You can’t just decide to ignore what was done here,” said Jeffrey Lichtman, one of Guzman’s defense attorneys. “If you do, you’re making a mockery of this case and the verdict.”

Defense attorneys want every juror questioned, Lichtman told CNN.

The US Attorney’s Office for the Eastern District of New York declined Tuesday to comment on the filing, spokesman Tyler Daniels said.

The act of bringing all jurors back for questioning would be a “very, very rare event,” said one retired federal judge, who told CNN she did so only once during her 22 years on the bench.

Though defendants frequently ask judges to review allegations of juror misconduct, bringing them back for questioning doesn’t happen often, former prosecutor Roger Canaff said.

“You’ve got to track all these people down,” he told CNN. “You can use legal process to bring them back in, but it’s not at all an easy thing to do. It’s not a thing that most judges or litigators want to do.”

If it happens, it would mean jurors — who sat through nearly three months of testimony, then deliberated over six days — end up being the ones getting questioned. Guzman was found guilty in February of 10 federal criminal counts, including engaging in a continuing criminal enterprise, which carries a mandatory term of life in prison.

‘We do expect honesty,’ defense attorney says

The Vice News report came eight days after the verdict was announced. It claimed, citing the anonymous juror, that some jurors disobeyed the judge’s orders by reading news reports on the trial and discussing the trial with each other before deliberations. Also, jurors lied about whether they had been exposed to information that the judge did not want included as evidence in the trial, the anonymous juror told Vice News.

Defense attorneys told CNN they found one allegation most disturbing: a juror following a Vice News reporter’s Twitter updates on a smartwatch warned other jurors in January that US District Judge Brian Cogan would question them about whether they’d seen news coverage of claims Guzman had sex with girls as young as 13. Cogan had ordered this information be withheld from the jury.

The claims warrant “robust” questioning of jurors, said defense attorney Marc Fernich, who consulted with Guzman in the past and joined his legal team shortly after the verdict.

“If true, it shows a profound disrespect for the judicial process,” Fernich said. “We don’t expect people to be sealed off into plastic bubbles, but we do expect honesty from them.”

The juror also told Vice News that being a part of the jury was a “once-in-a-lifetime thing” and called the Guzman proceedings the “case of the century.” Those opinions, the defense motion states, were not mentioned in the sworn juror questionnaire, an omission Guzman’s lawyers say “compels reversal and retrial.”

Vice News said the juror contacted the news agency by email a day after Guzman’s conviction, then video-chatted for nearly two hours with the Vice News reporter who’d covered the trial. The reporter recognized the juror from the courtroom, he wrote.

Throughout the nearly three-month-long trial, jurors were kept partially sequestered, meaning they were ushered to and from the courthouse, and were asked repeatedly to refrain from looking at news coverage of the trial. Unprecedented security surrounded the trial, inside and out of the courthouse.

Guzman was ferried to the Brooklyn courthouse in a police motorcade with a helicopter escort across the Brooklyn Bridge, which would shut down during his transfer. He remains at the Metropolitan Correctional Center, a federal prison in Manhattan.

Guzman is only allowed visits by his attorneys to talk about his case, and Fernich said they’ve told him about the allegations of juror misconduct.

“He’s disturbed by the revelations,” the lawyer said. “He’s hopeful that it will be adequately investigated and cautiously optimistic about being able to get some relief.”

It’s up to the judge

Cogan will decide if and how jurors would be called back for questioning. A hearing could include questioning by prosecutors, the judge and defense attorneys. It could be done publicly or in private.

Before bringing a jury back, Cogan would need to decide if he believes there is credible evidence of misconduct, retired US District Judge for the Southern District of New York Shira Scheindlin said.

“The judge would question the jurors individually,” Scheindlin said. “After the judge concluded whether he thought there was misconduct, he would make a decision on whether, in his view, it did taint the verdict and he had to set the whole thing aside, or if it wasn’t sufficient to taint the verdict.”

The act of bringing all jurors back for questioning would be a “very, very rare event,” Scheindlin said.

Scheindlin used to ask jurors in high-profile cases to sign an oath under the penalty of perjury promising they would not read any news or do any research, the former jurist said.

Lichtman said he believes some Guzman jurors may have committed crimes and should face criminal charges. But Scheindlin said she doesn’t think the allegations detailed in Vice News’ report would result in prosecution.

“The juror clearly disobeyed the judge’s instructions,” she said, “but I don’t think there would be any further action against the juror or jurors who disobeyed his instruction.”

Given advances in technology, Scheindlin said she believes there will be more and more cases of jurors being exposed to news reports.

“In the old days when I first started on the bench, we didn’t have Google and Wikipedia and the internet, and (for information) … people would have had to go to a library and pull out a book,” Scheindlin said. “But over the years, it’s at their fingertips, it’s on every device, it’s a watch, it’s a phone, it’s an iPad.”