In U.S. v. Villar the 6th Amendment and Due Process Trumps FRE 606(B)

U.S. v. Villar involved the conviction of a minority defendant for robbery.  Shortly after the defendant's guilt was determined by the jury, defense counsel received the following email from a juror who sat on the trial.

I felt compelled to send this to you. I don’t know if I should even be doing this but I don’t care. I know it’s late but I want you to know that there were at least 3 people on that jury who actually listened to the testimony with an open mind. We tried to make the rest pay attention. We made them go through every piece of evidence and every witness. Between us we pointed out every discr[e]p[a]ncy. They made up some story to explain it away. I want you to know that I will go to jail before I ever serve on another jury. It was awful. I’m sorry we couldn’t do anything. We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.”

The defense counsel raised this email with the court and asked that the judge inquire into the possibility of juror misconduct.  However, the trial judge believed that the Supreme Court's holding in Tanner v. U.S. and FRE 606(b) prevented him from taking such action. 

The First Circuit panel that decided Villar agreed with the trial judge's initial assessment that generally speaking both Tanner and FRE 606(b) restrict the court's ability to inquire into the jury deliberation process.  However, the 3-judge panel created an exception to this general rule finding that a judge may at her discretion inquire into the jury deliberation process if failing to take such action would potentially compromise the defendant's 6th Amendment and Due Process rights.  In distinguishing this case from Tanner, the 1st Circuit stated, "In our view, the four protections [to safeguard the Defendant's 6th Amendment rights] relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias."

For a completely different take on basically the same issue, see the 10th Circuit Court of Appeals decision in United States v. Benally, 2009 WL 738393 (10th Cir. 2009).  See also Professor Colin Miller who has written extensivelly on this issue The Lone Ranger And Tonto Fistfight In Heaven, Take 4: Tenth Circuit Denies En Banc Request In Juror Racism Appeal and Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense

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