Shillcutt v. Gagnon

• Decision Date: 20 February 1985
• Docket Number: No. 84-C-1024.,84-C-1024.
• Citation: 602 F. Supp. 1280
• Parties: James B. SHILLCUTT, Plaintiff, v. John R. GAGNON, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

602 F. Supp. 1280

James B. SHILLCUTT, Plaintiff, v. John R. GAGNON, Respondent.

No. 84-C-1024.

United States District Court, E.D. Wisconsin.

February 20, 1985.

Mark Lukoff, Wis. Public Defender, Milwaukee, Wis., for plaintiff.

Bronson C. La Follette, Atty. Gen. of Wis., Madison, Wis., for respondent.

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The petitioner seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. He alleges that his constitutional right to a fair and impartial jury was violated when one of the jurors made a racially prejudiced remark during the jury's deliberations. Since the record includes thorough briefs on the issue in controversy, no evidentiary hearing is necessary. The petition will be denied.

The petitioner was convicted by a jury of soliciting prostitutes and keeping a place of prostitution. After trial, the petitioner filed a motion for a new trial based on a juror's affidavit that another juror had stated during the jury's deliberations: "Let's be logical, he's a black, and he sees a seventeen year old white girl — I know the type."

The racial slur in the case at bar was made by a juror during deliberations. This is a very different circumstance from a remark made in the presence of the jury during trial. Because it was made by a juror during deliberations, however, the remark is protected from disclosure by Rule 606(b), Federal Rules of Evidence, which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Although enacted into the federal rules of evidence only in 1975, the rule has been part of the common law since Lord Mansfield's decision in Vaise v. Delaval, 1 T.R. 11, 99 Eng.Rep. 944 (K.B.1785). See Ford Motor Credit Co. v. Amodt, 29 Wis.2d 441, 139 N.W.2d 6 (1966). Barring the testimony of jurors concerning possible misconduct on the part of their fellow jurors during deliberations will occasionally result in unfairness to individuals. Rule 606(b) represents a judgment that exposure of the deliberative process would cause an even greater injustice by removing protections vital to the effective functioning of the jury system, thereby infringing everyone's constitutional right to trial by jury. The need for the rule was acknowledged by the Supreme Court in McDonald v. Pless, 238 U.S. 264, 267-68, 35 S.Ct. 783, 784-85, 59 L.Ed. 1300 (1915):

If the facts were as stated in the affidavit, the jury adopted an arbitrary and unjust method in arriving at their verdict, and the defendant ought to have had relief, if the facts could have been proved by witnesses who were competent to testify in a proceeding to set aside the verdict. But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.

The rule has prevented challenges to verdicts where damages were awarded by the quotient method, McDonald v. Pless, Id. Where all jurors agreed to be bound by a majority vote, Jorgensen v. York Ice Machinery, 160 F.2d 432 (2d Cir.1947). Where jurors thought the plaintiff had sued the wrong party, Rotondo v. Isthmian, 243 F.2d 581 (2d Cir.1957), cert. denied 355 U.S. 834, 78 S.Ct. 53, 2 L.Ed.2d 45 (1957). Where the jurors speculated about the effects of income taxes and attorney's fees on their verdict, Gault v. Poor Sisters, 375 F.2d 539, 550 (6th Cir.1967). Where jurors misunderstood or disobeyed the court's instructions, United States v. D'Angelo, 598 F.2d 1002, 1003 (5th Cir. 1979). Accord, United States v. Neary, 552 F.2d 1184, 1190 (7th Cir.1977); Domeracki v. Humble Oil, 443 F.2d 1245 (3d Cir.1971), cert. denied 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971).

The rule also applies where a litigant seeks to impeach a verdict by introducing evidence that a jury exhibited prejudice toward a party during deliberations. In United States v. Duzac, 622 F.2d 911 (5th Cir.1980), the court of appeals for the fifth circuit upheld the trial court's refusal to declare a mistrial after receiving a note from the jury stating that deliberations were stalled because of "certain prejudices among this jury due to prior personal experiences." The rule has also barred testimony regarding a juror's remark that the defendant belonged to a criminal syndicate, Young v. United States, 163 F.2d 187 (10th Cir.1947), and a juror's comment that "They ought to hang him now, so that we can go home." United States v. Kimberlin, 527 F.Supp. 1010 (S.D.Ind.1981), aff'd 673 F.2d 1335 (7th Cir.1981).

Remarks made by jurors during deliberations which reveal racial prejudice are also inadmissible. In Martinez v. Food City, 658 F.2d 369 (5th Cir.1981), the court of appeals for the fifth circuit held that a juror's statement during deliberations that the defendant "should be taught a lesson" for hiring legal Mexican aliens was barred by Rule 606. In Smith v. Brewer, 444 F.Supp. 482 (S.D.Ia.1978), aff'd 577 F.2d 466 (8th Cir.), cert. denied 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978), a black defendant had been found guilty of murder. The district court held that Rule 606 prevented a juror from testifying that during deliberations another juror

"... got up and walked about the room in a kind of a ... strutting way such as a minstrel used to do and mimics sic, used the black dialect to repeat some things the defendant's black lawyer said ... when he laid down on the table, he used the black

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