| FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEA HAWK SEAFOODS, INC.; COOK
INLET PROCESSORS, INC.; SAGAYA
CORP.; WILLIAM MCMURREN;
PATRICK L. MCMURREN; WILLIAM
W. KING; GEORGE C. NORRIS;
HUNTER CRANZ; RICHARD FEENSTRA;
WILDERNESS SAILING SAFARIS;
SEAFOOD SAILS; RAPID SYSTEMS
Nos. 98-35807
PACIFIC LTD.,
98-36117
Plaintiffs-Appellees,
D.C. No.
v.
CV-89-00095-HRH
ALYESKA PIPELINE SERVICE CO.;
EXXON CORPORATION; EXXON
SHIPPING COMPANY,
Defendants,
and
JOSEPH HAZELWOOD,
Defendant-Appellant.
3001
SEA HAWK SEAFOODS, INC.; COOK
INLET PROCESSORS, INC.; SAGAYA
CORP.; WILLIAM MCMURREN;
PATRICK L. MCMURREN; WILLIAM
W. KING; GEORGE C. NORRIS;
HUNTER CRANZ; RICHARD FEENSTRA;
WILDERNESS SAILING SAFARIS;
SEAFOOD SAILS; RAPID SYSTEMS
PACIFIC LTD.,
No. 98-36087
Plaintiffs-Appellees,
D.C. No.
v.
CV-89-00095-HRH
EXXON CORPORATION; EXXON
SHIPPING COMPANY,
Defendants-Appellants,
and
ALYESKA PIPELINE SERVICE
COMPANY,
Defendant.
3002
In re: THE EXXON VALDEZ,
SEA HAWK SEAFOODS, INC.; COOK
INLET PROCESSORS, INC.; SAGAYA
CORP.; WILLIAM MCMURREN;
PATRICK L. MCMURREN; WILLIAM
W. KING; GEORGE C. NORRIS;
HUNTER CRANZ; RICHARD FEENSTRA;
WILDERNESS SAILING SAFARIS;
No. 98-35796
SEAFOOD SAILS; RAPID SYSTEMS
D.C. No.
PACIFIC LTD.,
CV-89-00095-HRH
Plaintiffs-Appellees,
OPINION
v.
EXXON CORPORATION; EXXON
SHIPPING COMPANY,
Defendants-Appellants,
and
ALYESKA PIPELINE SERVICE
COMPANY,
Defendant.
Appeals from the United States District Court
for the District of Alaska
H. Russel Holland, Chief District Judge Presiding
Argued and Submitted
May 3, 1999
Filed March 16, 2000
Before: James R. Browning, Charles Wiggins,
1 and
Andrew J. Kleinfeld, Circuit Judges.
_________________________________________________________________
1 The Honorable Judge Charles E. Wiggins,
who was a member of the
panel, died on March 2, 2000. He had concurred
in this opinion before his
death.
3003
Opinion by Judge Kleinfeld
_________________________________________________________________
COUNSEL
John F. Daum, O'Melveny & Myers, Los Angeles,
California,
for defendants-appellants Exxon Corporation,
et al.
George J. Tsimis (briefed) and Thomas M. Russo
(briefed),
Chalos & Brown, New York, New York, for
defendant-
appellant Joseph Hazelwood.
David C. Tarshes (briefed), Davis, Wright,
Tremaine,
Anchorage, Alaska, for plaintiffs-appellees
Baker.
Brian B. O'Neill (argued), Minneapolis, Minnesota,
for
plaintiffs-appellees Sea Hawk Seafoods, Inc.,
et al.
_________________________________________________________________
3007
OPINION
KLEINFELD, Circuit Judge:
This is one of several appeals before this
panel relating to
the Exxon Valdez oil spill litigation. The
subject of this appeal
is whether the $5 billion punitive damages
verdict against
Exxon, and the $5,000 punitive damages award
against Hazel-
wood, should be set aside because of irregularities
during jury
deliberations. We affirm the district court
order that it should
not. This decision goes only to the motion
to vacate the judg-
ment for irregularities during jury deliberations.
It does not
purport to decide the issue of the amount
of damages, com-
pensatory and punitive, awarded to the plaintiffs.
I. Facts.
This case was tried in three separate phases.
The phase with
which this appeal is concerned was the punitive
damages
determination. After the jury awarded $5
billion, defendants
filed numerous motions, and appealed from
the judgment and
from denial of its motion for new trial.
While that appeal was
pending, newly discovered evidence persuaded
the district
judge, and us, that remand was appropriate,
under Crateo, Inc.
v. Intermark, Inc.,2 for consideration in
the trial court. We
remanded for consideration of the Rule 60(b)(2)
motion for
relief from judgment based on the newly discovered
evidence.
This appeal concerns only the second motion
for new trial,
based on the newly discovered evidence, not
the first motion
for new trial, so we do not discuss the facts
and legal determi-
nations raised in the earlier motion. Captain
Hazelwood, who
piloted the Exxon Valdez in the accident,
appeals, but simply
joins in the arguments by Exxon Corporation
and Exxon
Shipping Company, so we describe the appellants
collectively
as "Exxon."
_________________________________________________________________
2 Crateo, Inc. v. Intermark, Inc. , 536 F.2d
862, 869 (9th Cir. 1976).
3008
A retired police officer from Florida served
as a Court
Security Officer during the trial and deliberations.
He was
experienced and much decorated, as a police
officer and
before that in the military. He acted as
one of the bailiffs,
maintaining security for the jury room, escorting
the jury,
attending to its requests for food and other
needs, and receiv-
ing its communications. The punitive damages
phase of the
trial took more than four months, so all
the participants had
considerable contact with each other.
An Anchorage newspaper published a story after
the trial
describing the extremely stressful summer
in the jury room.3
One of the jurors, Juror A, was especially
distressed and was
not getting along well with the rest of the
jury. That had been
obvious to all participants, because she
cried in the hall and
otherwise acted distressed, and because the
jury sent out notes
expressing concern about her mental condition.
Based on
some of the allegations in the article, the
district court held an
evidentiary hearing in which the jurors were
questioned by
the judge under oath in open court with counsel
present about
possible irregularities.
One juror, Juror B, testified that the bailiff
motioned him
aside as he came to deliberations one morning
and "said
something about, you know, you guys, you're
really having
problems with her, or something like that,
pulled his gun out,
took a bullet out and said maybe if you put
her out of her mis-
ery or something." Juror B said he might
have told the jury
foreman about it, but told no one else, and
"it really shook me
up." Juror B perceived the remark as a tasteless
joke rather
than as a threat or serious suggestion. The
bailiff testified
under oath that "I haven't heard anything
so absurd in my life.
Nothing like that ever came from me." The
district judge
ruled that "the court is not convinced that
the incident ever
occurred," but that if it did, it did not
warrant a new trial,
because Juror A never learned of the communication,
and
_________________________________________________________________
3 See The $5 Billion Jury, Anchorage Daily
News, Jan. 22, 1996, at A1.
3009
Juror B and the jury foreman did not understand
it to be a
threat directed at them.
The United States Marshal in Anchorage, John
R. Murphy,
directed the investigation of the alleged
incident. Juror B
passed a lie detector examination, and the
bailiff's lie detector
examination "indicated deception" in the
opinion of the poly-
graph examiner, Investigator Robert Sheldon.
Sheldon later
confronted the bailiff about aspects of his
interrogation that
appeared contradictory. The bailiff then
admitted that the bul-
let incident occurred as Juror B described
it, but that he "was
joking" and that "nothing was meant to be
. . . a threat or
intimidation." Marshal Murphy told the bailiff
that because he
had lied, the Marshals Service would pursue
terminating him
unless he resigned. The bailiff turned in
a written resignation
within five minutes. Marshal Murphy did not
tell the district
judge or the lawyers that Juror B had been
telling the truth
and that the bailiff had lied. The bailiff
died of a heart attack
a few months after being forced to resign,
prior to adjudica-
tion of the second motion to vacate the judgment.
At the time
the district court denied Exxon's motion,
partly on the basis
of believing the bailiff's false testimony,
all these events had
already transpired, and the Marshal knew
the bailiff was lying
and that the gun incident had occurred. But
the judge did not.
Exxon's lawyers did not know anything about
the Mar-
shal's investigation of and report on the
bailiff. It was secret.
But a lawyer in Fairbanks happened to be
representing a
woman there in a wrongful termination case
in which the bai-
liff figured, and he had done discovery that
disclosed the exis-
tence (but not the contents) of the report.
He wrote Exxon's
lawyers, assuming they knew more than he
did, and saying
that he had found out in discovery that a
supervisor of the bai-
liff had written in his notes that the report
was "potentially
explosive" but claimed not to recall why,
and the United
States Attorney's office objected to disclosing
the report or to
deposing Marshals Service personnel about
it. He hoped to
obtain a copy of it from Exxon's lawyers,
not realizing that
3010
he knew much more about it (such as that it
existed) than they
did.
After following up on this tip, Exxon filed
a second motion
for new trial. Though the gun incident described
above
brought about the motion, Exxon claims that
additional inci-
dents also entitle it to relief. In addition
to the remark and dis-
play of the gun to Juror B, the bailiff had
had other contacts
with the jurors that Exxon claims entitle
it to a new trial. Also,
Juror A testified that when she asked the
bailiff what would
happen if she simply refused to come to the
courthouse and
deliberate any more, he told her that she
could be arrested and
put in jail. Also, she testified that one
of the other jurors made
a remark to her which she understood as a
threat to harm her
daughters if she did not say that she agreed
with the verdict
when the jury was polled.
ANALYSIS
A. The bailiff's gun remark.
Exxon argues that the bailiff's remark to
Juror B, in the
context of other contacts that it argues
were inappropriate for
a bailiff, entitles it to have the $5 billion
punitive damages
verdict vacated and a new trial ordered.
The district judge held extensive evidentiary
proceedings,
and made extensive findings of fact in support
of its denial of
the motion for new trial. On the second motion,
after the bai-
liff had been forced to resign for lying,
the court found that
the incident occurred as Juror B had described
it. The district
court characterized the bailiff's "maybe
if you put her out of
her misery" remark as "potentially coercive,"
but noted that
the "potential coercion was not directed
at Juror[B]." The
juror toward whom the remark might be potentially
coercive
was Juror A, but she did not know about it
during the deliber-
ations and verdict. The juror to whom the
remark was made,
Juror B, and the jury foreman, to whom Juror
B may have
3011
repeated it, were not the objects of any coerciveness.
The dis-
trict court expressly found that "Juror [B
] was not coerced by
the incident and that, with the possible
exception of the jury
foreman, the other jurors did not learn of
the incident during
the time they deliberated." Based on
these factual findings,
the district court concluded that the bailiff's
"maybe if you
put her out of her misery" remark and display
of the gun,
though potentially coercive, was not in fact
coercive conduct.
The district court therefore treated the bailiff's
remark and
conduct as an inappropriate ex parte contact
rather than coer-
cion. The court concluded that "Exxon has
not shown preju-
dice or that the incident between [the bailiff
] and Juror B
affected the verdict." Based on Exxon's failure
to show actual
prejudice, the district court concluded that
a new trial was not
warranted on this ground.
There was testimony that the bailiff had dropped
by a
Fourth of July picnic the jurors had. Some
jurors thought he
should not have been there, though the juror
who hosted the
picnic apparently invited him. Also, while
on a weekend drive
in the neighborhood of one of the jurors,
Juror C, the bailiff
and his wife dropped by the house of Juror
C and his wife.
Juror C was a gold miner, and lived in a
rural area an hour or
two out of Anchorage. The two couples had
coffee and chat-
ted about guns, but not about anything trial
related. The dis-
trict judge found that the bailiff attended
the Fourth of July
picnic and had social encounters with Juror
C. The court
found that these contacts were "not coercive
in nature or
effect." The district court concluded that
because the contacts
were not coercive, the burden was on Exxon
to show preju-
dice, and it had not.
Our precedents distinguish between introduction
of
"extraneous evidence" to the jury, and ex
parte contacts with
a juror that do not include the imparting
of any information
that might bear on the case. Our precedents
are mostly in
3012
criminal cases, but we have applied the same
rules in civil cases.4
Where extraneous information is imparted,
as when papers
bearing on the facts get into the jury room
without having
been admitted as exhibits, or when a juror
looks things up in
a dictionary or directory, the burden is
generally on the party
opposing a new trial to demonstrate the absence
of prejudice,
and a new trial is ordinarily granted if
there is a reasonable
possibility that the material could have
affected the verdict.5
[1] But this is not an extraneous information
case. The bai-
liff did not tell Juror B anything about
the facts or the law. He
made a strikingly tasteless joke about Juror
A, arising out of
her conspicuous emotionality, departure from
the jury room,
and crying. "Where ex parte contacts are
involved, the defen-
dant will receive a new trial only if the
court finds `actual
prejudice' to the defendant."6 This standard
applies to ex parte
contacts when, as compared to extraneous
information, they
do not pertain to " `any fact in controversy
or any law applica-
ble to the case.' "7 The contact by the bailiff
here was ex parte
in the same sense the clerk's contact with
a crying juror was
in Madrid. Both cases involve an inappropriate
response by
court staff to emotion and bickering in the
jury room, where
the staff contact did not involve any communication
bearing
on the substantive matters before the jury.8
The heightened
standard for motions for new trial, burden
on the movant to
show actual prejudice, therefore applies
to the bailiff's con-
tact. Our review, where, as here, the district
judge has held an
_________________________________________________________________
4 See Rinker v. County of Napa, 724 F.2d
1352, 1354 (9th Cir. 1983)
(stating that reliance on criminal cases
is appropriate because the
"integrity of the jury system is no less
to be desired in civil cases." (quot-
ing United States v. Barfield, 359 F.2d 120,
124 (5th Cir. 1966)).
5 See United States v. Maree, 934 F.2d 196,
200-01 (9th Cir. 1991); see
also United States v. Madrid, 842 F.2d 1092,
1093 (9th Cir. 1988).
6 Maree, 934 F.2d at 201 (citing Madrid,
842 F.2d at 1093).
7 See id.
8 Madrid, 842 F.2d at 1091.
3013
evidentiary hearing, is marked by "special
deference to the
trial judge's impression of the impact of
the evidence."9
[2] While an ex parte remark may in some circumstances
merit a rebuttable presumption of prejudice
because of its
inherently coercive effect, as where a judge
instructs a juror
ex parte regarding the verdict,10 the bailiff's
tasteless joke did
not merit any such presumption. It did not
purport to tell the
individual to whom it was directed, Juror
B, what his decision
in the case ought to be or how he should
make it. The bailiff
was not telling him he should shoot Juror
A, and Juror B did
not understand the remark to mean that. The
district judge
made a finding of fact that "[Juror B] treated
this encounter
as a bad joke." We defer to this finding
of fact as our prece-
dents require.11
Exxon argues for application of the standard,
more liberal
toward grants of new trial, for juror coercion
and extrinsic
evidence. However, as Madrid illustrates,
the problem of
court personnel making inappropriate remarks
to deal with
crying jurors who are not getting along with
their fellow
jurors arises from time to time, and is ordinarily
dealt with as
an ex parte contact case, under the standard
requiring the
movant to demonstrate actual prejudice.12
Exxon has not cited any precedent for applying
the extrin-
sic evidence or coercion standard to an ex
parte contact case
such as this one. These ex parte contact
cases use a different
standard from extrinsic evidence and coercion
cases both
because ex parte contacts are less likely
to do any harm to the
deliberative process than extrinsic information
or coercion,
_________________________________________________________________
9 United States v. Plunk, 153 F.3d 1011,
1024 (9th Cir. 1998).
10 Cf. United States v. United States Gypsum,
438 U.S. 422, 462 (1978);
Jenkins v. United States, 380 U.S. 445, 446
(1965).
11 See Valley Eng'rs, Inc. v. Electric Eng'g
Co., 158 F.3d 1051, 1052
(9th Cir. 1998), cert. denied 119 S. Ct.
1455 (1998).
12 See Madrid, 842 F.2d at 1091.
3014
and also because such contacts are very hard
to avoid. "[I]t is
virtually impossible to shield jurors from
every contact or
influence that might theoretically affect
their vote."13 Long tri-
als are especially vulnerable to ex parte
contacts, because
people around the courthouse get to know
the jurors, and it
becomes much harder for jurors and others
to preserve an arti-
ficial social isolation as days stretch into
weeks. Publicity
creates a shower of ex parte contacts on
the jurors. They
become celebrity magnets to aspiring "inside
dopesters," and
also because ordinarily social people are
naturally inclined to
make small talk about what they heard in
the news. Except in
large cities, at least some jurors in long
trials are reasonably
likely to see the judge, witnesses, court
personnel, and law-
yers at school events, concerts, sporting
events, or the grocery
store, where social contact is hard to avoid.
In a long, high
publicity case, a new trial on account of
ex parte contacts is
likely to be no more pure than the first
trial. Retrial of a publi-
cized case introduces the additional distortion
that jurors in
the retrial are likely to have trouble distinguishing
what they
heard from the publicity after the first
trial from what they
heard in the courtroom in the second.
[3] Exxon also argues that the district court,
in the course
of finding that the "maybe if you put her
out of her misery"
remark was taken as a "bad joke," violated
the rule against
inquiring into the effect of a statement
during deliberations on
a juror's state of mind.14 The rule does
not apply. It is limited
to effects on the juror's state of mind "as
influencing the juror
to assent to or dissent from the verdict,"15
or "concerning the
juror's mental processes in connection therewith."16
Juror B's
testimony was not about his mental processes
in connection
with the verdict. He was asked what he understood
the bai-
_________________________________________________________________
13 Rushen v. Spain, 464 U.S. 114, 118 (1983).
14 Fed. R. Evid. Rule 606(b).
15 Id.
16 Id.
3015
liff's words to mean, that is, whether they
were a bad joke or
a serious suggestion that he shoot Juror
A. That had no bear-
ing at all on whether Exxon should pay punitive
damages and
how much it should pay. Rushen establishes
that "[a] juror
may testify concerning any mental bias in
matters unrelated
to the specific issues that the juror was
called upon to decide
and whether extraneous prejudicial information
was improp-
erly brought to the juror's attention," even
though the rule
prohibits a juror from testifying "about
the mental process by
which the verdict was arrived."17 Likewise,
in Madrid we con-
sidered the juror's statement that she "did
not think" that the
court clerk was trying to influence her verdict,
when the clerk
found her crying after another juror had
sworn at her, and told
her she should settle her differences with
that juror.18
The bailiff certainly should not have made
his tasteless joke
to Juror B. However, after careful review
of the extensive evi-
dentiary record and scrutiny of the district
court's findings,
we conclude that the district court correctly
categorized the
bailiff's conduct and words as an inappropriate
ex parte con-
tact with a juror that did not introduce
extraneous information
into the deliberations and was not, in context,
actually coer-
cive. Our precedents therefore require that
in order to obtain
a new trial on account of it, Exxon would
have to demonstrate
actual prejudice. It did not.
B. The bailiff's alleged threats to Juror
A
Exxon also argues that it is entitled to a
new trial because
of newly discovered evidence that the bailiff
coerced Juror A.
Its theory is that the bailiff threatened
both to kill her and also
to lock her in jail if she refused to deliberate
further. During
the extensive evidentiary proceedings on
the first motion for
new trial, she had made no such allegations.
Her emotionally
distraught condition had been apparent to
the judge and other
_________________________________________________________________
17 Rushen, 464 U.S. at 121 n.5.
18 See Madrid, 842 F.2d at 1092.
3016
court personnel, because she ran out of the
jury room crying
more than once, and her husband had come
to court to talk to
the judge about how upset she was. But she
had not made her
accusations of coercion by the bailiff until
after the newspaper
publicity about denial of the first motion
for new trial. Her
husband had testified, during the evidentiary
proceedings on
the first motion for new trial, that she
did not ever tell him
that the bailiff or any other court employee
had made any
communication to her that she considered
inappropriate. He
testified that she told him the guards outside
the jury room
tried to "calm her down" and "console her"
"with hugs and
words." Regarding jail, Juror A's husband
testified that his
wife felt "penned up" as "everybody does"
in a jury, and that
"if she chose not to come back, that they
would put her in the
jail downstairs and bring her up to deliberation
during the
day," but he did not testify as to who she
said told her that.
The judge had not required Juror A to testify
on the first
motion because of her ill health, and Juror
A's husband
expressed appreciation for that.
When the second motion for a new trial was
made, Juror A
was required to testify. Her testimony was
strikingly different
from anything that had been heard before.
According to what
she said in 1998, three and a half years
after the trial, she
knew about the bailiff's display of the gun
when it happened,
because the other jurors told her "[t]hat
I was wanted dead."
Two of the jurors did not tell her that,
but the other nine and
also the bailiff "were very creative at telling
me how I could
be killed." Asked what the bailiff said when
he told her he
wanted her dead, Juror A gave this response:
[One juror]
could have a heart attack; it would be my
fault. [The
jury foreman] could start smoking and
that would
be my fault. I could be shot, accidentally,
with a throw-away
gun on break and wouldn't be
able to prove
who did it. Or one of the jurors could
just accidentally
get in the deliberation room with a
gun. One day
I was very upset and one of my things
3017
was just to
walk in the little room outside the delib-
eration room
and [the bailiff] told me that he could
kill me and
no one would know . . . and the other
jurors would
back him up.
Asked if the bailiff ever took a bullet out
of his gun and
showed it to her, Juror A gave this response:
He loaded his
gun, yeah . . . . I don't know anything
about guns,
and he just had this bullet and he put it
in and asked
me -- I don't remember. Oh, we just
-- two weeks
of terror and I don't know what day
it was, but
it was something about Russian roulette
or something.
That's the only time I saw the bullet.
Juror A, during this same line of questioning,
gave this
description of the threat to put her in jail:
I asked him
if I just didn't show up one day what
they would
do. He said they would arrest me and
there was
a jail downstairs and I could spend nights
in the jail
and they would bring me up for delibera-
tion, and
it wouldn't solve anything in my life,
because home
was the only thing that was saving my
sanity.
She testified that eight other jurors "most
definitely" wanted
her dead.
- One, who
scared her by "throwing things at me,"
threatened
to rape her, suggesting that rape
"would straighten
me up." This juror, as the
jurors were
lined up to reenter the courtroom and
deliver their
verdict, also made what Juror A
took to be
a threat against her daughters, dis-
cussed in
the next section: "he told me that my
daughters
were very good-looking and to think
about that
when I gave my vote."
3018
- Another was
"big on killing me" by smuggling a
knife into
the jury room in a cup of ice, and
"cutting my
body up and flushing it down the
toilet."
- Another,
who "was slimy, acting like he was on
the take,"
"told me how to commit suicide."
- Another suggested
that the first would "make me
come to my
senses" through the use of murder or
violence.
- Another "had
a vacation, that was the most
important
thing. If it meant killing me, fine. She
had a real
important vacation."
- There were
also various "comments about shoot-
ing me."
According to Juror A, once it started, the
open discussion of
how to kill her came up every day in the
jury room.
Juror A testified that she did not tell her
husband or anyone
else about the death threats from the bailiff
and the others at
the time. Then she forgot about them, and
had no recollection
of the bailiff displaying the gun or bullet
until her husband
told her that the incident with Juror B had
been reported in the
newspaper. After her husband told her about
the story in the
newspaper about the display of the gun and
bullet to Juror B,
then "things started coming back." Juror
A kept a personal
journal during the trial, but she did not
mention the bailiff's
threat to kill her or any of the other death
threats in the jour-
nal. She also talked to numerous journalists,
but did not tell
any of them about it. She claimed to receive
numerous written
death threats, but did not save any of them
or show any of
them to anyone. Juror A subsequently attempted
suicide, and
was under medical care at the time of her
testimony. She attri-
3019
buted her suicide attempt to delivering a
verdict that was not
her true verdict, because of the threat to
her daughters.
Exxon's argument focuses upon the alleged
threats by the
bailiff, not on the alleged threats by the
other jurors, so the
restrictions on upsetting a verdict because
of what went on in
the jury room have no application. There
was no objection to
the testimony about what went on in the jury
room, and it is
summarized above because it bears on the
credibility determi-
nation the district judge made.
The district judge was present when Juror
A testified. He
had arranged an informal setting for her
testimony, a deposi-
tion in a lawyer's office with himself and
one lawyer for each
side present, instead of testimony in court
with all the many
lawyers involved, in order to provide her
with a less stressful
environment. He did not believe that the
incidents she
described involving the bailiff -- the gun
display, the Russian
roulette comment, the threat to put her in
jail -- had actually
happened. The judge was now well aware that
the bailiff
could not be assumed to have acted properly.
And the bailiff
had died of a heart attack shortly after
being required to
resign, so he could not contradict Juror
A's account, which
she had not remembered while he was alive.
The district judge nevertheless concluded,
applying a pre-
ponderance of evidence standard, that the
events Juror A now
described had not actually occurred. He found
that Juror A
was telling what she believed to be the truth
and not lying, but
that what she described as a new memory was
actually a false
memory stimulated by the newspaper account
of the bailiff's
contact with Juror B, and mediated through
her own high
level of emotion:
[Juror A] more
probably than not did not learn of the
bullet incident
involving [the bailiff] and Juror [B]
during the
time the jury was deliberating. Rather, the
court finds
that she learned of this incident later,
3020
more probably
than not as a result of publicity fol-
lowing the
court's denial of Exxon's first motion for
a new trial
. . . . The court finds that [Juror A ] has
unintentionally
and mistakenly incorporated the inci-
dent between
[the bailiff] and Juror [B ] into her own
experience
where it formed the basis for erroneous,
recently regained
memories of other incidents which
did not happen.
As a result, the court explicitly found that
"[Juror A] did not
have any inappropriate, threatening, or coercive
encounter
with [the bailiff] during jury deliberations,"
and concluded
that Juror A "was not the subject of coercive
conduct or other
impermissible communications from [the bailiff
] . . . during
jury deliberations."
The district judge gave extensive reasons
for his conclu-
sion. Among them were these:
- He had extensive
opportunities, during the trial
and deliberations,
and during the deposition, to
observe Juror
A's demeanor, and it showed an
emotional
condition not consistent with reliabil-
ity of her
report. At the deposition, where she
had no personal
stake (unlike a litigant in court),
and was questioned
by a lawyer with a gentle,
soft manner,
she began trembling the first min-
ute, and within
ten minutes "her entire body was
trembling"
and she was crying, yet unlike most
stressed witnesses
in court, she had no trouble
speaking and
"appeared oblivious to the violent
trembling
of her limbs and copious weeping."
There was
"no objective reason for [Juror A ] to
be fearful
or emotional," and her "severe trem-
bling and
copious weeping was a wholly inap-
propriate
response to the circumstances" and
"cast substantial
doubt upon the reliability of
what she has
said."
3021
- Her testimony
about the bailiff and also about
what the other
jurors said and did was "bizarre
and shocking."
- According
to the other jurors, Juror A had never
mentioned
being threatened by the bailiff.
- Juror A's
husband testified that Juror A had
never told
him of any communications with
"anyone associated
with the court" that she
deemed to
be inappropriate. In fact, Juror A's
husband stated
that Juror A often received con-
soling "hugs
and words" from the bailiffs imme-
diately outside
the jury deliberation room.
- As he personally
observed them during delibera-
tions, "other
jurors appear to have been con-
cerned for
Juror A's emotional well-being"
during deliberations.
- Juror A kept
a journal during the deliberations,
yet "[n]one
of the incidents which she now
recalls and
attributes to [the bailiff] are men-
tioned in
the contemporaneous journal."
The district judge was acutely aware that,
the last time he
had disbelieved a story about highly inappropriate
conduct by
the bailiff, he had been mistaken. He said
that his own words
in his previous finding "have now come back
to haunt this
judge," and in his order expressly addressed
his "own embar-
rassment over learning that the `bullet incident'
between the
[the bailiff] and Juror [B] in fact occurred."
But he was not
prepared simply to assume that any accusation
of any similar
incident was true, without careful examination
of the evi-
dence, because "[t]hat would be unfair to
the plaintiffs and to
the ten other jurors."
3022
Exxon argues that the district judge should
have believed
at least part of what Juror A said the bailiff
had done, and part
is enough to obtain a new trial. Because
the district court held
extensive evidentiary hearings and made findings
of fact, we
review the findings of fact to determine
whether they are
"clearly erroneous."19
Exxon argues that Juror A's testimony "is
validated first
and foremost by Juror A's attempted suicide."
We do not see
why. The suicide attempt can just as reasonably
be interpreted
as an indicator of extreme emotional distress
or depression
that might distort the individual's ability
to perceive and
remember social occurrences accurately. Exxon
argues that
something must have happened to precipitate
Juror A's emo-
tional distress during the deliberations.
But we know that an
entirely innocent, highly stressful event
occurred that would
cause emotional distress -- two weeks of
intense jury deliber-
ations in an important case.
Exxon argues that Juror A's "emotional response
was proof
of the truth of what she was saying." Again,
we do not under-
stand why. "Inappropriate affect" is a term
any judge has
heard many times from psychiatric witnesses
testifying to an
emotional disorder, such as depression, which
would more
likely distort an individual's perceptions
and memories of
social interactions than validate them. Exxon
says that "[t]he
district court simply did not get it," because
the emotions
would naturally flow from Juror A's distress
about having
been threatened with death, but that assumes
what is to be
proved, that she was in fact threatened with
death. Juror A's
explanation of why she had not brought up
any of the death
_________________________________________________________________
19 See U.S. v. Hanley, 190 F.3d 1017, 1031
(9th Cir. 1999) ("We review
the district court's denial of a motion for
a new trial on the asserted ground
of juror misconduct for an abuse of discretion.`[A]lthough
we review
alleged incidents of juror misconduct independently,
we must accord spe-
cial deference to the trial judge's impression
of the impact' of the alleged
misconduct. We review the district court's
credibility determinations and
findings of historical fact for clear error."
(internal citations omitted)).
3023
threats before, "I'd forgotten," would raise
serious doubts in
any rational finder of fact about whether
she had a normally
functioning memory.
Exxon argues that the district judge engaged
in "judicial
psychologizing" that he "was patently unqualified
to
perform," when he attributed Juror A's testimony
to a false
memory, because such analysis can only be
performed by
experts. Exxon cites cases in support of
its argument,20 but
they are not on point. They hold that a district
court erred in
not allowing a defendant to put psychiatric
evidence before
the jury to show that he suffered from a
mental defect that
would cause him to make a false confession,21
that a plaintiff
needed some expert witness evidence to show
causation
between certain physical conditions and claimed
chemical
exposure,22 and that a mother bringing a
negligence claim was
not competent to testify as to her child's
internal injuries due
to a car accident.23
[4] The "judicial psychologizing" argument
lacks merit.
Any judge or juror assigned the task of deciding
whether a
juror's account of facts is true must necessarily
consider the
juror's ability accurately to perceive, remember
and relate
those facts. Where the judge or juror has
good reason to think
that the account of the facts is false, yet
the witness has no
apparent reason to lie, the finder of fact
necessarily must think
about why the witness might give a false
account while
attempting to tell the truth. Juror A's account
was, as the dis-
trict judge noted, so unlikely as to be highly
implausible. Far
from being inappropriate "amateur psychologizing"
as Exxon
_________________________________________________________________
20 United States v. Hall, 93 F.3d 1337 (7th
Cir. 1996); United States v.
Shay, 57 F.3d 126 (1st Cir. 1995); Claar
v. Burlington Northern R. Co.,
29 F.3d 499 (9th Cir. 1994); Franklin v.
Shelton , 250 F.2d 92 (10th Cir.
1957).
21 See Hall, 93 F.3d at 1344-45; Shay, 57
F.3d at 133.
22 See Claar, 29 F.3d at 104.
23 See Franklin, 250 F.2d at 97.
3024
contends, the district judge's careful analysis
focused on fac-
tors that juries are routinely instructed
to consider: "the wit-
ness' memory"; "the witness' manner while
testifying";
"whether other evidence contradicted the
witness' testimony";
"the reasonableness of the witness' testimony
in light of all
the evidence"; and "any other factors that
bear on
believability."24
Exxon argues that we must reverse because
the district
judge did not explicitly and separately discuss
Juror A's alle-
gation that the bailiff threatened her with
jail if she refused to
come to court and deliberate. This part of
her account did not
suffer from the implausibility of the rest
of it, because court-
houses ordinarily have holding cells for
prisoners, and it may
be that there are circumstances where a recalcitrant
juror
could be brought in and held pursuant to
a bench warrant.25
But the district judge did not have this
allegation in isolation.
Juror A testified that the bailiff made this
threat in the conver-
sation where he threatened to kill her, and
testified to it in the
series of answers where she described all
the lurid ways she
could be killed.
[5] It is logical to disbelieve even a plausible
allegation if
a witness makes it in the course of a generally
implausible
account. Suppose, hypothetically, a person
says "I saw a
woman milking a cow." That is plausible.
Now suppose the
person goes on to say "and the woman and
cow were inside
a horse's head, and there was another woman
who was walk-
ing upside down on the roof of an upside
down house." In
light of these additional statements, it
is not sensible to say,
as Exxon's argument implies, "well, she must
have seen
_________________________________________________________________
24 Ninth Circuit Manual of Model Jury Instructions,
Civil, Form 3.7
(1997).
25 See generally 28 U.S.C.S 1866(g) (1994)
(providing that juror who
fails to appear pursuant to summons for jury
duty and fails to show cause
for failing to appear "may be fined not more
than $100 or imprisoned not
more than three days, or both." (emphasis
added)).
3025
something, and a woman milking a cow is plausible,
so she
must have at least seen a woman milking a
cow." It is far
more probable that the person is not describing
anything that
happened in the empirical actuality of which
findings of fact
are made, and instead saw all this in a Marc
Chagall painting
(or if the hypothetical speaker is Marc Chagall,
in his imagi-
nation). Juror A was not describing a Chagall
painting, but
she described events so unlikely, with a
demeanor so extreme,
that a finder of fact could reasonably conclude
that she suf-
fered from a condition that would distort
her perceptions or
recollections. The district judge so concluded.
If a person
claims to have perceived things which almost
certainly did
not occur, then it is reasonable to disbelieve
the person's
claim to have perceived things that might
otherwise reason-
ably be thought to have occurred. The district
judge did not
accept the truth of anything Juror A said,
because of the
extreme unlikelihood of much of what she
said, as well as her
demeanor while saying it. We routinely instruct
jurors that
they "may believe everything a witness says,
or part of it, or
none if it,"26 and a judge has the same choices,
for the same
reasons. The district judge rejected all
of Juror A's testimony,
including her account of the bailiff's threat
to put her in jail
if she refused to come to court and deliberate.
His finding was
not clearly erroneous.
Exxon also argues that the district court's
instructions did
not adequately emphasize each juror's duty
to maintain her
own honest convictions rather than yield
them to reach a ver-
dict, and each juror's duty to maintain courtesy
toward the
other jurors. This argument could be and
was made only in
Exxon's first motion for new trial, not the
second motion for
new trial, the denial of which is the only
issue before us. The
second motion is based on "newly discovered
evidence"
under Rule 60(b)(2).27 The judge's instructions
to the jury
_________________________________________________________________
26 Ninth Circuit Manual of Model Jury Instructions,
Civil, 3.7 (West
1997).
27 Fed. R. Civ. Pro. Rule 60(b).
3026
were of course not "newly discovered evidence"
years after
the trial had concluded. They are therefore
not before us for
review. We do not intimate that the judge's
instructions fell
outside the discretion the district court
had to formulate
instructions.28
Exxon argues that Juror A's account of the
bailiff's alleged
threat to put her in jail and bring her upstairs
for deliberations
was corroborated by her husband's testimony.
It would not be
decisive if it was, but in fact it was not.
What he said was that
his wife felt "penned up," as jurors typically
do during
lengthy deliberations. He also said that
"her impression" was
that "if she chose not to come back, they
could put her in the
jail downstairs and bring her up to deliberation
during the
day." He did not testify that she said the
bailiff had told her
this. The impression could as easily have
come from a juror
or some other acquaintance who had been on
a state jury
where the same question was raised, and an
answer along
those lines had been given. Jurors sometimes
learn a lot from
accounts by others of jury service in other
cases.
In sum, the district judge described the focus
of his findings
as being on whether Juror A had been "threatened"
or
"intimidated" by the bailiff. That included
the alleged threat
to hold her in jail if she refused to show
up. He held extensive
evidentiary hearings, made careful findings
of fact, and found
that Juror A's account, in its entirety,
did not merit belief,
despite its subjective honesty. These findings
were not clearly
erroneous.
C. Juror C's Alleged Threat
Exxon argues that the district judge was required
to grant
_________________________________________________________________
28 See Gilbrook v. City of Westminster, 177
F.3d 839, 860 (9th Cir.
1999) ("Because the district court has substantial
latitude in tailoring jury
instructions, we review the formulation of
those instructions for an abuse
of discretion.").
3027
a new trial because of a threat after the
jurors had reached
their verdict but before they returned it
in open court. When
the jurors have a verdict, they typically
tell the bailiff. After
the judge causes the parties, counsel and
others to assemble
in court, the bailiff informs the jurors,
and they line up await-
ing his signal to walk into the courtroom.
Once in court, their
verdict is handed to the bailiff or deputy
clerk, who passes it
to the judge to inspect for defects of form,
such as illegibility
or not being signed by the foreman. Assuming
that there are
no defects of form, the judge has the deputy
clerk read the
verdict out loud. Many judges, with or without
a request by
counsel, then have the clerk poll the jury.
That means that the
deputy clerk asks each of them in open court
whether the ver-
dict as read is that juror's true and correct
verdict. Only after
each jurors says that it is, does the judge
accept the verdict
and direct that it be entered.29
If a juror says "no" during the polling in
open court, then
the verdict is not entered. There may be
a motion for mistrial,
and the judge may decide whether to discharge
the jury and
declare a mistrial, or order the jury to
deliberate further.30
Juror A testified that she planned to say
"no" when the jury
was polled, because she recognized that as
a moment when a
juror enjoys a high degree of physical safety.
But she was
scared to do so because as the jurors lined
up to enter the
courtroom, Juror C "told me that my daughters
were very
good-looking and to think about that when
I gave my vote."
She understood that remark to be a threat
directed at her
daughters.
Exxon argues that the rule against allowing
a juror to
impeach her own verdict31 does not apply
because the alleged
remark was made after the jurors had concluded
their deliber-
_________________________________________________________________
29 See 1 Kevin F. O'Malley et. al, Federal
Jury Practice and
Instructions, S 9.07 (5th ed. 2000).
30 See id.
31 Fed. R. Evid. Rule 606(b).
3028
ations. We need not determine whether its
legal argument has
any merit, a doubtful proposition,32 because
the district judge
made a finding of fact, as discussed above,
that Juror A's
account was not worthy of belief. This finding
was not clearly
erroneous, so the alleged threat must be
treated as imaginary.
CONCLUSION
The district court's denial of Exxon's Rule
60(b)(2) motion
based on irregularities in jury deliberations
is AFFIRMED.
_________________________________________________________________
32 See Traver v. Meshriy, 627 F.2d 934, 941
(9th Cir. 1980)
3029 |
