Criminal Law Blog

Rule 33 Held Non-Jurisdictional; Due Diligence Prerequisite Rejected for Claims of Juror Misconduct Discovered Post-Trial

Poth v. United States (decided December 29, 2016).
Players: Judges Glickman and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith. Enid Hinkes for M.P.  Trial Judge Russell F. Canan.
Facts:  Following M.P.'s conviction for voluntary manslaughter while armed, defense counsel “Googled” M.P.’s jurors and learned that Juror 061 had a prior felony conviction and that Juror 703A had been the complainant in an assault.  The government subsequently disclosed that Juror 061 had several other convictions and that Juror 703A had been the complainant in another assault.  This information was sought during voir dire but omitted from the jurors’ responses.  
Issue 1:  Whether review of M.P.’s motion for new trial was barred by extensions of time to file that did not comply with Super. Ct. Crim. R. 33? 

Holding 1
:  No.  Rule 33’s time limit “is not jurisdictional,” as it is not mandated by constitution or statute.  Slip. Op. at 6. The government waived Rule 33’s protection by failing to object to all but one of the requested extensions and representing that it had no objection, as long as it was given proportional time to respond.  Id. at 8.
Issue 2:  Whether the trial court erred by denying M.P.’s motion based on defense counsel’s purported failure to exercise due diligence in discovering the alleged misconduct?

Holding 2
:  Yes.  “Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.”  Id. at 10.
Issue 3:  Whether, on remand, the trial court may grant relief without an evidentiary hearing?

Holding 3
:  Yes.  If it is no longer possible to hold a fair hearing to determine whether the jurors were biased, the motion for new trial should be granted outright.  Id. at 14.  Further, in the absence of evidence satisfactorily explaining Juror 061’s failure to disclose his prior convictions, the trial court should presume that his failure was intentional and thus highly probative of his inability to render a fair and impartial verdict. Id. at 15.
Of note:

  • In holding that Rule 33’s time limit is not jurisdictional, the Court of Appeals recognized that one contrary precedent – Diamen v. United States, 725 A.2d 501 (D.C. 1999) – has been undermined by subsequent Supreme Court cases and that another – Dean v. United States, 938 A.2d 751 (D.C. 2007) – did not pass upon this precise question.  See Slip. Op. at 7 & n.7.  Neither Dean nor Diamen is good law on this issue.
  • The Court of Appeals rejected the argument that a “due diligence” requirement is needed to prevent sandbagging because, given the uncertain prospect of obtaining post-trial relief, a defendant is always better served by raising a claim of juror bias immediately.  Slip Op. at 12-13 n.13.  Indeed, although this opinion removes one procedural hurdle to post-trial relief (jurisdictional time bar) and prevents another from taking root (due diligence), a defendant seeking a new trial based on juror misconduct must still prove actual juror bias, a burden that should not be underestimated.  WC