New York Times

September 16, 2014

by Adam Liptak

WASHINGTON — In the summer of 2006, not far from Mount Rushmore, a truck collided with a motorcycle. The rider lost part of his leg.

The rider sued, but a South Dakota jury sided with the truck driver. A few days later, one of the jurors approached the rider’s lawyer. The juror, Stacey Titus, said he was having second thoughts.

Those qualms set in motion a Supreme Court case to be argued next month, one that will examine the privacy of jury deliberations and consider how to address dishonesty during jury selection.

In a sworn statement, Mr. Titus said the jury’s forewoman, Regina Whipple, had allowed her judgment to be warped by her family’s experiences.

During the deliberations, he said, Ms. Whipple revealed that her daughter has been at fault in a fatal car accident. “She related,” Mr. Titus said, “that if her daughter had been sued, it would have ruined her life.” Other jurors echoed her statement, he said.

The injured rider sought a new trial based on the sworn statement. But lower courts refused to consider it, relying on Supreme Court precedents and a rule of evidence that sets strict limits on inquiries into what jurors said or did during deliberations.Cha

The Supreme Court has been quite reluctant to consider evidence from inside the jury room. In 1987, it refused to intercede when it emerged that jurors in a mail fraud trial in Florida had treated their responsibilities as “one big party” featuring pitchers of beer, liters of wine, marijuana and cocaine. In the courtroom, some jurors slept. One was giggly.

Justice Sandra Day O’Connor, writing for the majority, said there were good reasons to turn a blind eye toward “irresponsible or improper juror behavior.”

“A barrage of post-verdict scrutiny of juror conduct,” she wrote, would undermine candid discussions during deliberations. It would make it harder for jurors to take unpopular positions. It could subject former jurors to harassment. It could undermine the finality of verdicts, allowing challenges months or years later.

The same concerns drove Congress to adopt a federal rule of evidencethat bars most testimony from jurors “during an inquiry into the validity of a verdict.”

But what if a juror lied during jury selection, promising to be fair but harboring a bias? Is insisting on the constitutional right to trial by an impartial jury the same thing as attacking “the validity of a verdict”?

The injured motorcycle rider, Gregory P. Warger, told the Supreme Court that the two things are different. His objection had nothing to do with how the jury reached its verdict, he said, but only with its composition. He added that state and federal courts in California have long allowed challenges based on accusations that jurors had been dishonest during jury selection.

Prospective jurors almost never admit to racial prejudice, for instance, but it has been known to infect deliberations.

Justice Samuel A. Alito Jr. considered one such case in 2003, when he was still an appeals court judge. A juror who had agreed to “judge the testimony of a black person in the same fashion as the testimony of a white person” revealed himself in the jury room to be the sort of virulent racist who was at ease with the vilest slurs.

The case did not require Judge Alito to resolve the question of whether it would be all right to use evidence from the jury room to show that the juror had lied during jury selection. But he did not sound enthusiastic about the idea.

The question for the Supreme Court in the South Dakota case, Warger v. Schauers, No. 13-517, is in a way quite modest. It is not whether Mr. Warger deserves a new trial but only whether he can rely on evidence from inside the jury room to try to get one. He could win that right at the Supreme Court and lose again in South Dakota.

That is because Mr. Titus’s sworn statement does not go very far in establishing that Ms. Whipple, the forewoman, had been dishonest during jury selection or that she would have been struck from the jury had she been more forthcoming.

There is also a major gap in the court record. It does not contain Ms. Whipple’s version of events.

She is a retired elementary schoolteacher, and she sounded surprised to be central to a Supreme Court case when I gave her a call last week.

I read her Mr. Titus’s sworn statement, and she said it was all wrong. She said she had never talked about her daughter’s accident during deliberations, and for good reason. “My daughter never had any accident,” she said.

What the jury considered, she said, was the facts. “We empathized with the rider,” she said, “but at the same time felt he was a little reckless and careless in riding in such heavy traffic.”

It is hard to reconcile the two versions of what went on in a South Dakota jury room years ago. But the court system has ways of establishing the truth. Mr. Titus, Ms. Whipple and the other jurors could be called back to court and questioned under oath.

Or perhaps the verdict they rendered should mark the end of their service to the court.