Bailiff issues – the careless, the chatty, the controlling, the prejudiced – we have always with us. Traditionally, at least, the problem bailiffs were routinely found in the courtrooms of the problem judges (though we don’t know this judge and have no idea whether that’s true here). .
After a jury trial – 12 days, 24 witnesses, 168 exhibits – produced an unsatisfactory result American hired a PI to interview jurors. He got affidavits from two. Turns out that when sent to deliberate – in the middle of Friday afternoon before a three-day weekend – the jurors, who had earlier wondered how long the trial would last, asked the bailiff how long deliberations typically take. She told them that “an hour or two should be plenty.” The affidavits also claimed that most jurors didn’t consider the evidence, just wanted to go home, etc. American moved for new trial; the trial court denied it. The Court of Appeals reverses.
The court first rules that although the jurors’ thoughts and attitudes are inadmissible under Rule 606 the bailiff’s comment could be considered, as “extraneous information that could have prejudiced the jury.”
The court next holds, citing Perez (1997), that a bailiff communication doesn’t necessarily warrant new trial. Though bad if it was improper and prejudicial, the communication is okay if concerns an “administrative detail” or an “innocuous matter,” or if it accurately answers a question. But if it doesn’t, or if you can’t tell, or if it violated an “essential right” then a new trial can be in order.
The trial court can hold an evidentiary hearing to determine these things. That’s what the majority ends up deciding that this trial judge should have done. The dissent points out that CSK didn’t dispute what the bailiff said and therefore feels that no hearing was necessary (and that finding what happened innocuous was within the trial court’s discretion; the majority goes out of its way to mention facts to the contrary and of course that may be the point of its opinion – finding that you should have held a hearing is a way to reverse a discretionary ruling the appellate judges don’t agree with).
So why did the majority feel that a hearing was necessary? It doesn’t hesitate to conclude that length of deliberations is not a permitted communication and is of procedural importance. But the majority’s question is whether this improper communication was prejudicial. In other words, did the jury think the bailiff’s remark a general comment or did they think it applied specifically to their case? The affidavits didn’t, in the majority’s view, provide enough information to answer that.
What about the problem that the trial took place three years ago? Its for the trial court to determine whether an evidentiary hearing at this point is feasible. If not, says the majority, the court must order a new trial (apparently on the law cited above that if you can’t tell then its prejudicial).
Finally, the court discusses the scope of the hearing. The thrust appears to be that although under Rule 606 you can’t ask jurors how something actually affected their thinking you can find out things around the edges – when it happened, where it happened, how it happened, who heard it, etc.
So, one of two things will happen. Either the trial court will take the majority’s broad hints, reverse himself, and grant a new trial, using the excuse that a hearing is no longer feasible. Or he will call the jurors back to court to give testimony, the two who gave affidavits will have their recollections refreshed by them and emphasize the egregiousness of the circumstances, the rest won’t remember or won’t care or won’t show, and the judge will grant a new trial. What we wonder is whether the bailiff will face any consequence for scuttling an expensive trial with a careless – or worse – remark. Well, no, we don’t wonder, bureaucracies being the way they are.