Mitchell v. US, No. 18-17031 (4-30-20)(Ikuta w/ concurrence by Christen & concurrence by Hurwitz). Editorial note: FPD Az was trial counsel on this capital matter.

How can one learn of juror racial bias under Pena-Rodriguez v. Colorado, 137 S. Ct 855 (2017) unless one can approach jurors? “Not our problem,” opines the 9th, in affirming the denial of petitioner’s request to interview jurors. The 9th  acknowledges that while Pena-Rodriguez creates a new exception to Fed R. Evid 606(b), allowing jurors to testify as to their deliberations when it comes to racial bias, the case did not change the law of investigating or interviewing jurors absent “extraordinary circumstances.” No such extraordinary circumstances were presented here.

This was not for want of trying by counsel. This case is a capital conviction for carjacking resulting in murder on the Navajo Reservation. Counsel raised juror issues related to representation of Native Americans on the jury and other issues. Habeas counsel was prevented from interviewing jurors due to the local rule that barred interviewing jurors. Jurors could approach counsel; but not counsel approaching jurors.

The panel did allow this issue to be raised under Rule 60(b). It was procedural as opposed to a second successive claim.  A small victory there.

Christen concurred. She acknowledged the jurisdiction for the offense, but raises concerns that this was the first death case for an Indian upon Indian crime, not under 18 USC 1153 (Major Crimes), but by jurisdiction through carjacking resulting in death.

Hurwitz concurred. He wrote to urge the current Administration to take a “fresh look” at the “wisdom” of imposing death on a crime committed by a Navajo on Navajo, entirely within the Navajo nation, when the Navajo nation opposed seeking the death penalty, the members of the victims’ family opposed the death penalty, and the US Attorney at the time of the offense opposed seeking the death penalty. Seeking such a penalty betrays the respect the federal government must afford tribal sovereignty.

Some issues to consider: (1) Counsel should seek to change such local rules that bar counsel approaching jurors to afford a “bias exception.” (2) Counsel should object to the juror instruction at the discharge of the jury, stating that counsel cannot approach them, but they can approach counsel. Counsel should ask that jurors be specifically instructed to approach the Court or counsel as to any bias in deliberations.  (3) In the alternative, counsel can ask about bias. (4) Can Pena-Rodriguez be used as a separate instruction prior to deliberations as an admonition against prejudice and a duty to report such statements. (5) Can/should counsel specifically argue Pena-Rodriguez to the jury against bias. (6) Can Pena-Rodriguez be used as a way for expanded jury voir dire, or even counsel voir dire, because the court will tell the jurors they can approach counsel, at the end of the case.

Deputy FPDs Jonathan Aminoff and Celeste Bacchi, FPD Cal Central (Los Angeles) fought hard on this issue and appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/30/18-17031.pdf