Tenth Reverses New Trial Grant Despite Jurors' Racist Comments

US v. Benally, -- F.3d --, 2009 WL 73893 (10th Cir. 3/23/09) - Rehearing en banc denied of panel decision reversing Utah district court grant of Mr. Benally's new trial motion. There were 4 votes for rehearing - Briscoe, Lucero, Henry, and Murphy. Briscoe writes a dissent joined by Lucero and there is a separate dissent by Murphy and Lucero. A juror came forward the day after the verdict was announced and said that two jurors made racist statements about Native Americans during deliberations. The foreman told the other jurors he used to live near an Indian Reservation and that when Indians get alcohol, they all get drunk and then get violent. Another juror chimed in in agreement. There was jury discussion about the need to send a message back to the reservation. The district court found that the two jurors had lied during voir dire in failing to reveal past experiences with Native Americans and their preconceptions that Native Americans get drunk and violent. The panel decided Mr. Benally's use of juror testimony to challenge the validity of the verdict violated Fed. R. Evid. 606(b). Briscoe views Benally's claim as inquiring into the legitimacy of pre-trial procedures and the constitutionality of the overall proceedings. She writes, and Murphy and Lucero agree, that a juror's statement that denigrates the defendant's race should fall within the "extraneous prejudicial information" exception of Rule 606(b). The panel decision conflicts with the 9th and DC Circuits' interpretation of Rule 606(b).