Gomez v. Shinn

587 F.Supp.3d 939

Fabio Evelio GOMEZ, Petitioner,

v.David SHINN, et al., Respondents.

No. CV-21-01529-PHX-MTL

United States District Court, D. Arizona.

Signed February 28, 2022

Charlotte Grace Merrill, Jon M. Sands, Dale A. Baich, Nathan Alexander Maxwell, Federal Public Defenders Office, Phoenix, AZ, for Petitioner.

Ginger Jarvis, Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

Michael T. Liburdi, United States District Judge

Before the Court are Respondents’ motions to bar Petitioner Fabio Evelio Gomez's defense team from contacting any juror in this case absent leave of Court based on a showing of good cause (Doc. 14), and to require the defense team to channel any request to contact a victim in this case solely through Respondents’ counsel (Doc. 15). Gomez opposed both motions (Docs. 16, 17), and Respondents replied (Docs. 18, 19). For the reasons discussed below, the Court will grant both motions.

I. BACKGROUND

In 2001, a jury convicted Gomez of first-degree murder, kidnapping, and sexual assault based on Gomez's attack on a neighbor at his apartment complex. State v. Gomez (Gomez II ), 231 Ariz. 219, 293 P.3d 495, 497 (2012). Before he was sentenced, the United States Supreme Court issued its decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which required aggravating factors in capital cases to be found by a jury. Id. at 497–98. The trial court thus reset the matter for a jury sentencing. Id. A second jury found that the murder was especially cruel and depraved under A.R.S. § 13-751(F)(6) and determined that Gomez should be sentenced to death. Id. The Arizona Supreme Court affirmed the conviction and sentence for sexual assault but vacated the death sentence and the sentence for kidnapping. State v. Gomez (Gomez I) , 211 Ariz. 494, 123 P.3d 1131 (2005). On remand, a third jury found the (F)(6) factor and determined that Gomez should be sentenced to death. Gomez II , 293 P.3d at 498. The trial court resentenced him for the kidnapping. Id. The Arizona Supreme Court affirmed. Id. at 503.

After unsuccessfully pursuing post-conviction relief in state court, Gomez filed his intent to seek habeas relief from this Court. (Doc. 1.) The Court appointed counsel and ordered Gomez to file his habeas petition by July 8, 2022. (Docs. 5, 12.) Respondents subsequently filed the pending motions. (Docs. 14, 15.)

II. DISCUSSION

A. Juror Contact

Respondents ask the Court to prohibit Gomez's defense team from contacting "trial and resentencing jurors absent ... leave of Court based on a showing of good cause to believe that juror misconduct occurred." (Doc. 14 at 4.) They argue that this bar will further the policy behind Federal Rule of Evidence 606(b) —to protect a jury verdict's finality and to promote full and candid jury deliberations—without unduly restricting the defense team's investigation. (Id. at 1–4). Gomez responds that such a bar would unreasonably restrict the team from investigating whether misconduct, racial bias, or jury tampering occurred. (Doc. 17 at 2–5.) He adds that no federal or state authority compels such a bar and that the ethical duties of his counsel will suffice to "protect jurors from harassment and intrusive inquiry." (Id. at 5–10.)

Judges of this District have taken different approaches to these requests. Compare Ellison v. Ryan , No. CV-16-08303-PCT-DLR, 2017 WL 1491608, at *2–3 (D. Ariz. Apr. 26, 2017) (finding no authority that requires a showing of "good cause" to contact jurors), with Reeves v. Shinn , No. CV-21-1183-PHX-DWL, 2021 WL 5771151, at *3 (D. Ariz. Dec. 6, 2021) (finding ample case law confirming that district courts may grant such requests and that there are "powerful reasons why district courts should exercise their discretion in favor of such requests"), and Harrod v. Ryan , No. CV-16-02011-PHX-GMS, 2016 WL 6082109, at *3 (D. Ariz. Oct. 18, 2016) (granting request to the extent that it prevented petitioner from asking jurors about matters not admissible in evidence, but not about "extraneous influences on the jury," as no authority demands such a bar).

The Supreme Court has noted that "very substantial concerns support the protection of jury deliberations from intrusive inquiry." Tanner v. United States , 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). In Tanner , the Court explained that post-verdict "investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior" but found that "[it] is not at all clear ... that the jury system could survive such efforts to perfect it." 483 U.S. at 120, 107 S.Ct. 2739. The Court noted that claims "raised for the first time days, weeks, or months after the verdict [would] seriously disrupt the finality of the process." Id. (citing Gov't of the Virgin Is. v. Nicholas , 759 F.2d 1073, 1081 (3d Cir. 1985) ). Moreover, an onslaught of post-verdict claims against jurors would undercut "full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople...." Id. at 120–21, 107 S.Ct. 2739 (citing Note, Public Disclosure of Jury Deliberations, 96 Harv. L. Rev. 886, 888–92 (1983) ); see also McDonald v. Pless , 238 U.S. 264, 267–68, 35 S.Ct. 783, 59 L.Ed. 1300 (1915) (noting that public investigation of juror deliberations would cause "the destruction of all frankness and freedom of discussion and conference").

Courts "have long imposed restrictions on lawyers seeking access to jurors" following a verdict. Mitchell v. United States , 958 F.3d 775, 787 (9th Cir. 2020). These restrictions "(1) encourage freedom of discussion in the jury room; (2) reduce the number of meritless post-trial motions; (3) increase the finality of verdicts; and (4) further [ Rule 606(b) ] by protecting jurors from harassment and the jury system from post-verdict scrutiny." Id. (quoting Cuevas v. United States , 317 F.3d 751, 753 (7th Cir. 2003) ). Known as the "no-impeachment rule," Peña-Rodriguez v. Colorado , 580 U.S. 206, 137 S. Ct. 855, 865, 197 L.Ed.2d 107 (2017), Rule 606(b)(1) bars jurors from testifying, in general, about their deliberations. Fed. R. Evid. 606(b)(1) ; see Peña-Rodriguez , 137 S. Ct. at 865 (noting that the rule "promotes full and vigorous discussion" and "gives stability and finality to verdicts").

That is not to say that Rule 606(b) prohibits all post-verdict juror testimony. Rule 606(b)(2) allows jurors to testify about exposure to "extraneous prejudicial information" and "outside influence," as well as mistakes in "entering the verdict on the verdict form." Fed. R. of Evid. 606(b)(2). Evidence of a juror's "clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant" is also admissible. Peña-Rodriguez , 137 S. Ct. at 869.

Absent those exceptions, the Ninth Circuit "condemn[s] the practice of interviewing jurors on the course of their deliberations in the jury room." Bryson v. United States , 238 F.2d 657, 665 (9th Cir. 1956) ; see also N. Pac. Ry. Co. v. Mely , 219 F.2d 199, 202 (9th Cir. 1954) (holding this practice to be "improper and unethical"); Harrod , 2016 WL 6082109, at *2 (citing Mely , 219 F.2d at 202 ; Traver v. Meshriy , 627 F.2d 934, 941 (9th Cir. 1980) ; Com. v. Moore , 474 Mass. 541, 52 N.E.3d 126 (2016) ) (stating that "investigation directed at discovering the inadmissible considerations of motives and influences that led to a juror's verdict ... is inappropriate and unethical").

Courts of this Circuit, in fact, must "protect jurors from the annoyance and harassment of such conduct." Bryson , 238 F.2d at 665. This Circuit therefore discourages post-verdict juror interviews. See Hard v. Burlington N. R.R. , 812 F.2d 482, 485 (9th Cir. 1987) (citing Traver , 627 F.2d at 941 ; Smith v. Cupp , 457 F.2d 1098, 1100 (9th Cir. 1972) ), abrogated on a different ground in Warger v. Shauers , 574 U.S. 40, 44–45, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014).

Thus, this Court does not abuse its discretion or violate the Constitution by barring post-verdict juror interviews without a showing of good cause. Mitchell , 958 F.3d at 787 (citing United States v. Eldred , 588 F.2d 746, 752 (9th Cir. 1978) ; Smith , 457 F.2d at 1100 ). Other Circuits take this approach. See United States v. Wright , 506 F.3d 1293, 1303 (10th Cir. 2007) ; United States v. Kepreos , 759 F.2d 961, 967 (1st Cir. 1985) ; United States v. Riley , 544 F.2d 237, 242 (5th Cir. 1976). Although the Ninth Circuit has "not joined other courts in" banning evidence from post-verdict juror interviews without leave of court, it "believe[s] the better practice is" to seek such leave. Hard , 812 F.2d at 485 & n.3 (citing Maldonado v. Mo. Pac. Ry. Co. , 798 F.2d 764, 769 (5th Cir. 1986) ; United States v. Kepreos , 759 F.2d 961, 967 (1st Cir. 1985) ).

Further, "very cogent reasons," beyond those expressed in Tanner , support a requirement that good cause be shown before a juror may be contacted. These reasons 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. See Wilkerson v. Amco Corp. , 703 F.2d 184, 185–86 (5th Cir. 1983) (quoting O'Rear v. Fruehauf Corp. , 554 F.2d 1304, 1310 n. 4. (5th Cir. 1977) ) (internal quotations omitted) (noting civil verdicts).

In sum, ample case law reveals "powerful reasons" why this Court should grant Respondents’ request.¹ See Reeves , 2021 WL 5771151, at *3. In addition, this Court has " ‘wide discretion’ to restrict contact with jurors to protect jurors from ‘fishing expeditions’ by losing attorneys." United States v. Wright , 506 F.3d 1293, 1303 (10th Cir. 2007) (quoting Journal Pub. Co. v. Mechem , 801 F.2d 1233, 1236 (10th Cir. 1986) ); see also Rich v. Calderon , 187 F.3d 1064,...