Memorandum Opinion and Order: Claim XXII: Juror Misconduct
WILLIAM K. SESSIONS III, District Judge.
Donald Fell has moved under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence of death, to vacate and set aside his judgment of conviction and to grant him a new trial. The Government has opposed the motion, and requested summary dismissal of Fell's claims. Following review of the § 2255 motion and the request for discovery, the Court declines to order summary dismissal of Claim XXII,  and sets forth a procedure and schedule for further proceedings as detailed below.
In its Memorandum Opinion and Order addressing the remainder of Fell's § 2255 claims, the Court described the background and procedural history of this case, familiarity with which is presumed. Only those facts necessary to the resolution of the request for summary dismissal of Claim XXII are set forth below.
Jury selection in this capital case began on May 4, 2005, with individual voir dire. Prior to voir dire, prospective jurors filled out a detailed questionnaire. The parties had submitted a joint proposed juror questionnaire to the Court, and the Court revised the questionnaire. In the questionnaire, each of the prospective jurors were asked, among other things, "Have you or has a family member or close friend ever been a witness to or the victim of a crime?" They were also asked, "Have you or has a family member or close friend ever been charged with a crime?"
In a videotaped address to the prospective jurors, the Court, among other things, explained to the prospective jurors:
If you cannot answer a question because you do not understand it, write "Do not understand" in the margin next to the question. If you cannot answer the question because you do not know write "Do not know." If you want to explain your answer, do so either in the space provided on the questionnaire, or on one of the sheets appended to the questionnaire.... If for any reason you do not wish to answer any particular question, please write the word "Private" in the margin next to the question and we will take this matter up with you privately, if necessary.
Because your answers are part of the jury selection process and become part of the record of this court, the answers must be truthful under the penalty of perjury, and you must sign the questionnaire at the end.
Tr. Videotaped Jury Instructions 13, Fell Ex. 117.
Individual voir dire was conducted over fifteen days between May 4 and June 6, and a jury was selected on June 9, 2005. From their first contact with the Court, prospective jurors and those who were seated for Fell's trial were repeatedly advised and reminded that their verdict must be based "on the evidence presented in the courtroom and not on anything that [they] may have heard or read or experienced outside the courtroom." See, e.g., id. at 5. They were repeatedly advised and reminded not to discuss the case with others or among themselves. See, e.g., id. at 12. At the beginning of each day of trial the seated jurors were asked if they had spoken to anyone about the case, or learned anything about the case from outside the courtroom. See, e.g., Trial Tr. vol. 1-1, 10, June 20, 2005. At the end of each day of trial the Court reminded the jurors not to discuss the case with anyone or to be exposed to publicity or learn anything about the case from outside the courtroom. See, e.g., Trial Tr. vol. 1-2, 89, June 20, 2005. At one point the Court also specifically advised the jurors not to conduct their own investigation. Trial Tr. vol. 6, 61, June 29, 2005.
Fell makes three categories of claims that he was deprived of his constitutional rights to an impartial jury. First, he claims that two of the jurors in his case did not answer the questionnaire completely and truthfully, and that had they done so they would have been stricken for cause. Second, he claims that the jurors were exposed to extraneous influences. Third, he claims that a juror coerced another into changing her vote.
The government argues that all of Fell's juror claims, raised for the first time in this motion, are procedurally defaulted. In general, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). The purpose of the rule is to "conserve judicial resources and to respect the law's important interest in the finality of judgments." Id. Like ineffective assistance of counsel claims, however, juror misconduct claims may be poorly suited to resolution on direct appeal. Evidence of juror misconduct may not appear in the trial record. Cf. id. at 504-05 (discussing ineffective assistance claim). A district court-in particular the one that presided over voir dire, jury selection, trial and verdict-has the opportunity to develop a record and to weigh the facts relevant to determining whether a defendant has been deprived of his right to a fair and impartial jury. Cf. id. at 505-06. Accordingly, where, as here, the trial record did not disclose grounds for raising the jury issues on appeal, and the jury claims could not be presented without additional factual development, the procedural default rule will not apply to bar the claims. See Waley v. Johnston, 316 U.S. 101, 104 (1942) (per curiam) (holding that an issue was appropriately raised by habeas corpus petition where "[t]he facts relied on are dehors the record and their effect on the judgment was not open to consideration and review on appeal"); Bousley v. United States, 523 U.S. 614, 621-22 (1998) (distinguishing a Waley claim from one that can be fully addressed on direct review based on the record); see also Ida v. United States, 191 F.Supp.2d 426, 436 (S.D.N.Y. 2002) (holding that a juror misconduct issue was properly raised in a § 2255 motion).
A. Juror Non-Disclosure or Misstatements
"One touchstone of a fair trial is an impartial trier of fact-a jury capable and willing to decide the case solely on the evidence before it.'" McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)); accord United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006). "Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.... The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." McDonough, 464 U.S. at 554.
In McDonough Power Equipment, the United States Supreme Court held that a party seeking a new trial based on juror nondisclosure or misstatements must satisfy a two-part test. "[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." Id. at 556. "Challenges for cause are generally based on actual bias, implied bias, or inferable bias." United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002). Actual bias is bias in fact. Id. Implied bias is bias presumed as a matter of law. Id. And "[b]ias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.'" Id. (quoting United States v. Torres, 128 F.3d 38, 47 (2d Cir. 1997)). The McDonough rule applies to criminal trials. See, e.g., Stewart, 433 F.3d at 303; Greer, 285 F.3d at 170.
1. Juror 162
Juror 162 answered "No" to the question "Have you or has a family member or close friend ever been a witness to or the victim of a crime?" In fact, the juror had been the victim of repeated sexual abuse as a child. In a written statement the juror disclosed: "At trial, we learned that Donald Fell was abused as a child and that his parents were alcoholics. I was sexually abused by my stepfather for years and it didn't turn me into a murderer." Fell Ex. 280, § 7 (filed under seal). Fell argues that the failure of the juror to disclose the molestation, on the questionnaire or in camera, prejudiced him and requires a new trial. As Fell explains, the fact that Fell had been sexually and physically abused as a child was presented as a mitigating factor in the penalty phase of the trial. His defense team considered it important that prospective jurors be asked whether they would be able to consider evidence of childhood sexual abuse as a mitigating factor.
The government argues first that Rule 606(b) of the Federal Rules of Evidence prohibits use of the juror's ...