Zerka v. Green
| Decision Date | 22 March 1995 |
| Docket Number | No. 93-2111,93-2111 |
| Parties | Paul Matthew ZERKA, Plaintiff-Appellant, v. Harlon GREEN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Tammy J. Reiss (argued and briefed), Southfield, MI, Milton H. Greenman, Thurswell, Chayet & Weiner, Southfield, MI, for plaintiff-appellant.
Frederick L. Schmoll, III (argued and briefed), Flint, MI, for defendant-appellee.
Before: MARTIN and BOGGS, Circuit Judges; FORESTER, District Judge *.
This case requires us to determine whether a new trial is required when a court discovers that a juror has intentionally concealed information in order to be selected for a civil jury. We affirm the district court's conclusion, reached after an evidentiary hearing, that a new trial is not required in the circumstances of this case.
Plaintiff Paul Matthew Zerka sued Harlon Green, a City of Flint Police Officer, pursuant to 42 U.S.C. Sec. 1983. Zerka alleged that Green used excessive force during a confrontation on May 14, 1989, which arose when Green was working off-duty as a security guard for a nightclub. The case went to trial in April 1993, and after nearly five days of testimony, an eight-person jury returned a verdict for Green.
Immediately following the verdict, plaintiff's counsel, Milton Greenman, spoke to several jurors to gain their perspectives on the case. The precise circumstances of what next occurred are murky, as there are ambiguities and inconsistencies in the witnesses' accounts. Nevertheless, certain elements are not in dispute: As Greenman and two jurors, Anthony Phillpotts and Ronald Pemberton, were walking out of the courthouse together, Phillpotts indicated that he had not offered certain information during voir dire. Phillpotts said that he had wanted to be on the jury, and he had learned from an earlier jury experience that the answers to voir dire questions determined who would sit on the panel. However, Phillpotts professed that he felt justified in not speaking because he knew he could be an objective juror. Immediately after this exchange, Greenman recorded a sworn statement recounting these events. 1
A portion of the transcript best reflects the circumstances of the voir dire; the transcript does not specify which prospective jurors spoke, although certain jurors can be identified on the basis of other statements in the transcript.
THE COURT: Anything in the experience either of you just related that would affect your ability to be fair and impartial in this case? Do any of you have any present or prior relationships with any law enforcement agency, and that would include either yourself, your spouses, or members of your family?
Yes, sir.
[No response from jurors.]
During this questioning, Phillpotts did not speak up. After completing voir dire, the court called counsel to the bench for a sidebar, where Greenman asked the judge to question further two prospective jurors: "the person in law enforcement" (Dunn) and the "man [who] said he was a para-legal" (Pemberton). Other than those prospective jurors, Greenman passed on challenges for cause.
The court questioned Dunn 2 and Pemberton in more detail. Attorneys for both parties passed for cause, and then exercised their peremptory challenges. Greenman used his first peremptory to excuse Dunn; the record does not reflect whether he used other peremptories to excuse any other jurors who admitted having relationships with police officers. Despite having friends in law enforcement, Phillpotts remained silent throughout the voir dire 3 and when jurors were given an opportunity to speak privately with the judge.
Armed with this new information, Zerka moved for a new trial on the basis of juror impropriety, or in the alternative, for a hearing on bias. The court conducted an evidentiary hearing on June 22. At the hearing, Pemberton testified that he remembered Phillpotts saying that he did not tell the truth at voir dire in order to get on the jury. 4
Phillpotts testified 5 and acknowledged that he did not respond truthfully during voir dire. He explained that he had been called for jury duty before and feared that if he answered truthfully, he would not be chosen to serve. He added that he was embarrassed to speak up because he stuttered, and that he felt he could overlook his friendships because they would not affect his objectivity.
After reviewing the evidence, the court concluded that Phillpotts deliberately and intentionally concealed his relationships with police officers for two reasons: to get on the jury, and to a lesser extent, because he was embarrassed about speaking in front of other jurors. The court then applied McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), in which the Supreme Court held that a new trial is warranted only where a truthful answer would have provided grounds for a challenge for cause. Finding that "at best, a true answer would have allowed plaintiff's counsel a more discerning basis for exercising preemptory [sic] challenges ... [but] would not have provided grounds for a challenge for cause and plaintiff has conceded this point," the court denied the motion for a new trial. Zerka timely appeals.
"[A] district court's determination on a motion for either a new trial or relief from judgment because a juror failed to fully disclose information during voir dire is reversible only for either an abuse of discretion ... or a clear error of law in the exercise of this discretion." McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir.1981) (citations omitted); see United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 376, 121 L.Ed.2d 287 (1992).
Zerka argues that he was denied a fair trial because Phillpotts's failure to discuss his relationships with police officers prevented Zerka from intelligently exercising his peremptory challenges. He relies upon McCoy v. Goldston, which held that a court shall presume bias and order a new trial where a juror deliberately conceals information or gives a purposefully incorrect response. 652 F.2d at 658-59. Zerka argues that McDonough does not apply here because that case involved a juror's "mistaken but honest" response to a voir dire question, unlike Phillpotts's deliberate concealment.
In McDonough, the Supreme Court held that a litigant is "not entitled to a new trial unless the juror's failure to disclose denied [a party] their right to an impartial jury." 464 U.S. at 549, 104 S.Ct. at 846-47. The two-part test announced in McDonough governs cases of intentional concealment, even though the Court believed that the juror in that particular case answered honestly: 6
A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.... We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.
464 U.S. at 555-56, 104 S.Ct. at 850 (emphasis added). As a result, some of the confusion surrounding McDonough is due to the origination of a rule applicable to deliberate concealment from a case involving a juror's innocent non-disclosure. Nonetheless, other courts apply the McDonough test in cases of deliberate concealment or false answers. See United States v. Langford, 990 F.2d 65, 68 (2d Cir.1993) (). See also Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7th Cir.1992); Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993); United States v. Scott, 854 F.2d 697 (5th Cir.1988); United States v. St. Clair, 855 F.2d 518, 522-23 (8th Cir.1988); United States v. Perkins, 748 F.2d 1519, 1531-33 (11th Cir.1984).
The McDonough standard is more concerned with actual prejudice than with a juror's subjective mental state, although the latter can be evidence of the former. Thus, a juror's motive for concealing information is relevant, but not dispositive. 464 U.S. at 556, 104 S.Ct. at 850 () Rather, the Court's two-part test...
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