new trial should be ordered for “possible” prejudice unless record shows “entire absence of any influence on the verdict or the probability that such influence existed”
How later courts described this case
- new trial should be ordered for “possible” prejudice unless record shows “entire absence of any influence on the verdict or the probability that such influence existed”
- applying Remmer in civil context
- “If a single juror is improperly influenced the verdict is as unfair as if all were.” (quotation omitted)
- direct threats against juror and his family
Written by the judges who cited it.
The opinion
EDWARDS, Circuit Judge,
concurring.
I join fully in Judge Lively’s opinion for the court.
However, I also find reversible error in the District Judge’s comments to the jury pertaining to the threat to the one juror. It is hard to see how the jury as a whole could fail to feel threatened by the comments made to the jury from the bench. Granting the difficulties of the situation, the language the District Judge employed simply went too far.
In notifying the jury of his intention to sequester them, the District Judge said:
I am very much troubled and disturbed by information that has come to my ears that threats have been made to at least one of your number in an attempt to influence your decision in this case.
I was brought up in an old school that threats of the type that were made are not to be ignored and not to be taken lightly.
There have been times when I have ignored such threats and I have blood on my hands and it is not easy to carry blood on your hands for ignoring things, and I don’t propose to have it happen again if I can avoid it.
What I am now saying to you, I must ask you to keep in the very strictest of confidence. You can’t keep it in absolute confidence because you are going to have to go home and discuss it with your families at a later point today. But when you do discuss it with them, I think you must emphasize to them that it is of vital importance to them that they do not breathe a word of what you tell them to anybody, under any circumstances whatever.
What I am going to have to do, and I do this with tremendous reluctance, I am going to have to arrange, when you come back tomorrow, for you to bring clothing and things so that you can stay and be under the protection of my Marshals and stay together until this case is finally concluded.
How long that will be, I don’t know, because it is going to take you a long time, I realize, for your deliberations.
But you are going to have to stay and stay under my custody and be kept away entirely from the public until you have reached your decision in the case.
I am sorry about this, but as I say, threats have been made on the lives of one of your number and I have no assurance that we can solve it simply by getting rid of that one.
Maybe some of you others have been threatened and have passed it off or have not even realized, perhaps, it was a threat *580 or an attempt to threaten. But obviously threats become idle once they can no longer be communicated to you.
In other words, there is no need, you can’t make a threat if you can’t get it through to the person that you expect to be influenced by it. And it is for that reason only that I am taking this step.
I had thought that I would never, under any circumstances, reach a point where I felt that a jury ought to be sequestered. You read it in the paper, it is done very frequently, particularly in criminal trials of great magnitude. I have always felt that, to a considerable extent, an insult to the integrity of the jurors.
I am not now dealing with a matter of your integrity, which I have no doubts about whatever. But I am dealing with threats, as I say, my experience leads me to believe that I ought not simply ignore.
And it is your safety with which I am concerned, not your integrity. I don’t worry about your internal integrity, that I have confidence in. I know you can protect that. But I don’t have enough Marshals and enough FBI people, agents, to keep you protected as you go about your daily business.
Now, the reason I am not saying that you have got to stay right here and now be under protection now, I think if you do follow my instructions not to breathe a hint of this to anybody, as I say, you will have to tell your families because you will have to make arrangements for them to be taken care of, and that sort of thing while you are staying as my unwilling guests. But if we ostensibly go through the same motions that we have been going through, I think that the threateners, whoever they are, will not change their tactics. They will continue to concentrate where they have been concentrating.
As to one of your members, at least, we can provide and will provide around-the-clock protection and surveillance and as a practical matter, also of law enforcement in making such threats, of course, it is a very serious crime.
But people can’t be punished for crime unless they can be apprehended, and one of the hardest things in the world is to apprehend stinking cowards who go around making and carrying out threats.
ORDER
The petitions for rehearing with suggestions of rehearing en banc filed by the defendants-appellees having come on for consideration, and of the Judges of this court who are in regular active service less than a majority having favored ordering consideration en banc (Judges Weick, Cele-brezze and Peck favored rehearing en banc and Judge Weick has filed a separate dissent), the petitions for rehearing have been referred to the hearing panel.
Upon consideration of the petitions for rehearing the court concludes that the issues raised therein were fully considered upon submission and decision of the case.
Accordingly, the petitions for rehearing are denied.