by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit ordered a new trial and invoked its rarely used power to assign the case to a different judge where defendants were denied a meaningful opportunity to prove juror bias due to the district judge’s mishandling of the case.

Ricky and Katrina Lanier were tried by jury the U.S. District Court for the Eastern District of Tennessee before U.S. District Judge J. Ronnie Greer on three felonies, including major fraud against the federal government. On the morning of the second day of jury deliberations, Juror 11 phoned her friend Teresa Nelson, seeking Nelson’s advice about a “problem with the deliberations.” Nelson, a state prosecutor not involved in the case, informed Judge Greer that the jury was “very clearly divided into two groups … and they’re angry with each other.” Judge Greer informed the attorneys of Juror 11’s phone call and of the court officer’s report. Shortly thereafter, the jury returned verdicts of guilty.

Because it appeared that a divided jury suddenly voted unanimously to convict after a juror made unauthorized contact with a state prosecutor, the Laniers sought to interview the jurors and moved for a mistrial. Judge Greer denied the motion, and the Laniers appealed. The Sixth Circuit vacated and remanded with instructions to the district court to conduct a hearing pursuant to Remmer v. United States, 347 U.S 227 (1954) (“Remmer hearing”), to allow the Laniers a meaningful opportunity to prove juror bias.

In October 2017, Judge Greer sent the jurors and Nelson an order directing them to attend a Remmer hearing on January 11, 2018, and instructing them not to discuss the case with any other person. Four days before the scheduled hearing, Juror 11 texted Nelson about the case and stated she had looked up the case online. Nelson informed Judge Greer of the texts, but Judge Greer did not inform the Laniers.

The Laniers learned of the texts at the Remmer hearing when Nelson testified. When Juror 11 testified, she repeatedly denied contacting anyone about the Remmer hearing, but she finally admitted she had texted Nelson. Juror 11 also repeatedly denied discussing the case with anyone during deliberations but again eventually admitted she had phoned Nelson.

At the close of the hearing, the Laniers sought to examine Juror 11’s text and her web-browsing history. The district court ordered Juror 11 to preserve the data but refused to compel her to produce the data. The Sixth Circuit intervened, and on February 8, 2018, the district court ordered Juror 11 to turn over her phone and laptop.

Juror 11 brought her phone and laptop to the court on February 16, 2018. A law clerk discovered the laptop’s web-browser history only went back to February 7. But as for her phone, a law clerk took screenshots of the text messages and web-browser history dating back to December 2017.

The Laniers moved to have the phone and laptop examined by their forensic expert. Judge Greer returned the phone to Juror 11 but ordered the laptop to be examined by the court’s chosen expert at the Laniers’ expense. The district court set a hearing for April 11, 2018, for the parties to examine the evidence. Prior to the hearing, the court’s expert informed the court that the laptop’s Google Chrome history had been manually deleted on February 7, 2018, and the missing data could not be recovered.

But Judge Greer did not inform the Laniers of the lost data until days before the hearing. At the April 11 hearing, the Laniers’ forensic expert testified that the missing data may have been captured by Google’s servers. If so, it could be retrieved via Juror 11’s phone. Juror 11 then stated that she traded in her phone for a new one, and the phone in question was permanently gone. 

The Laniers moved for a new trial, arguing the unauthorized juror contact prejudiced their case with a biased jury. Judge Greer denied the motion, finding that the Laniers failed to prove bias and prejudice. The Laniers appealed, arguing they were denied a meaningful opportunity to prove juror bias because, in spite of the judge’s order to preserve the data, Juror 11 deleted the laptop data and discarded the phone. The Laniers further argued the district court failed in its obligations by not seizing the phone on the date the call was made; by not informing them of the texts to Nelson prior to the Remmer hearing; and by not allowing their expert to examine the phone and laptop. The Judge Greer denied the motion, and the Laniers appealed.

The Sixth Circuit observed, “[T]he Sixth Amendment guarantees a defendant the right to trial by an impartial jury.” And “[t]he presence of even a single biased juror deprives a defendant of [their] right to an impartial jury.” Williams v. Bagley, 380 F.3d 932 (6th Cir. 2004). “In a criminal case, any private communication, contact, tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” Remmer. When a defendant raises a colorable claim of extraneous influence, a district court must fulfill its obligation to investigate to determine whether there may have been a violation of the defendant’s constitutional right. United States v. Davis, 177 F.3d 552 (6th Cir. 1999).

The Sixth Circuit is the only circuit that places the burden of proving juror bias on the defendant rather than presuming prejudice and requiring the government to prove any error was harmless. United States v. Zelinka, 862 F.2d 92 (6th Cir.1988). Therefore, courts must conduct a Remmer hearing that provides defendants with a meaningful opportunity to prove juror bias. Ewing v. Horton, 914 F.3d 1027 (6th Cir. 2019). District courts must allow for a meaningful investigation into the external communications; the impact of those communications on the jury; and whether or not those communications were prejudicial. United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) District courts are required to permit “all interested parties” to “participate” at the hearing in order “to comport with due process.” Remmer.

The Court determined that Judge Greer’s handling of the Remmer hearing undershot the district court’s constitutional obligations. The Court listed the failures by Judge Greer. The initial failure to seize the phone upon learning of the call and then the failure to seize it on February 16, 2018 led to the phone being lost permanently. Not informing the Laniers of the texts until the Remmer hearing deprived them of an opportunity to prepare to examine the witnesses. Not permitting the Laniers’ expert to examine the laptop when initially requested resulted in the permanent loss of the data. In short, the Laniers were not given a meaningful opportunity to present their claim of juror bias. Since the data evidence was now lost forever, another Remmer hearing would not be constitutionally adequate. Therefore, the only remedy was to order a new trial.

The Court then discussed its power to reassign a case on remand pursuant to 28 U.S.C. § 2106. Factors to be considered when invoking this power are: (1) whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previous views or findings, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518 (6th Cir. 2012).

The Court explained that it was “deeply troubled” by Judge Greer’s failures to inform the Laniers prior to the Remmer hearing of Juror 11’s texting and online research and in denying the Laniers a search of the phone while it was available. Judge Greer’s questionable handling of the case compromised the appearance of justice, the Court concluded.

Accordingly, the Court reversed and remanded for a new trial before a different judge. See: United States v. Lanier, 988 F.3d 284 (6th Cir. 2021). 

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