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A jury that convicted a band of six armed robbers of carrying out a string of brazen bank heists in the Washington area might now, ironically, have given them a second chance at acquittal. Allegations of jury misconduct that surfaced after the conclusion of the high-profile trial have prompted a federal judge to consider tossing out the verdict — a daunting notion considering the first trial lasted three months and involved more than 100 witnesses. The convictions are in jeopardy because of claims that rogue jurors may have sleuthed around crime scenes themselves and talked about their findings. Now the defense wants a new trial. “This court explained thoroughly before deliberations jurors are not to do their own investigations and not to talk about the case outside the jury room,” the defense wrote in its motion for a new trial. “Members of this jury disobeyed those tenets.” The defense filed its motion when a juror came forward after the defendants’ July 15 conviction on assorted bank robbery, racketeering, and weapons charges in the U.S. District Court for the District of Columbia. Prosecutors say the band terrorized the D.C. region for months, carrying out armed robberies at six banks in Northwest Washington and Maryland that netted more than $350,000 and attracted huge media attention. Each of the defendants faces a minimum of 30 years and a maximum of life in prison, based on recommended federal sentencing guidelines. But just days after the trial ended, juror Eric Peterson sent an e-mail to defense attorney Joanne Hepworth, who represented 26-year-old Miguel Morrow, the gang’s alleged leader. Peterson testified during an Oct. 31 evidentiary hearing on his allegations that he wrote in the e-mail that he wanted to discuss his reasons for finding the defendants guilty and share with Hepworth “things that were peculiar” about the jury. In a series of subsequent e-mails, Peterson recounted several incidents during his jury service that bothered him. In one e-mail he wrote, “Much juror misconduct took place, i.e., going to bank.” The e-mails, which were mistakenly entered into the public record last month and later placed under seal, provided detailed accounts of alleged wrongdoing, such as jurors visiting crime scenes and possibly having improper discussions about the case. But when Peterson testified in court about his allegations, he didn’t convey the same level of concern relayed in his e-mails, one defense attorney involved with the case admits. That change in tone might merely have been the result of Peterson’s reluctance to scrutinize the actions of fellow jurors, says Tony Booker, the public defender who represents Carlos Aguiar, a 25-year-old defendant from Columbia Heights who prosecutors say played a key role in the robberies. Booker also suggests that Peterson might have been hesitant to cause more controversy. Early on in the trial it was Peterson who brought a fellow juror’s inappropriate comments to the attention of the judge, who in turn dismissed the man from the jury. When Judge Colleen Kollar-Kotelly asked Peterson why he didn’t report the allegations sooner, he responded, “I just decided to keep my mouth shut after the juror number four incident.” Attempts to contact Peterson for this article were unsuccessful. A recording indicated his home telephone number had been disconnected. Throughout the Oct. 31 hearing on Peterson’s allegations, Assistant U.S. Attorneys Daniel Butler and Barbara Kittay repeatedly objected to defense attorneys’ attempts to ask Peterson how he interpreted the statements of other jurors. Kollar-Kotelly sustained most of the objections, allowing only a narrow line of questioning in order to protect the privacy of jury deliberations.
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“I was a little disappointed with how the testimony came across at the hearing and how the hearing was conducted,” Booker says, adding he thinks the judge should have allowed a broader inquiry. Hepworth filed the initial motion for a new trial and has since been joined in the effort by the lawyers representing her client’s five co-defendants. Other defense attorneys contacted for this article either did not return calls or declined to comment on the case. Channing Phillips, principal assistant U.S. attorney in Washington, says he is unable to comment about ongoing criminal cases. As of now, attorneys involved in the case say the judge has announced no plans to question additional jurors and they expect her to rule soon after Dec. 14, when the last supplemental motions on the matter are due. BEAST OF A BURDEN Ultimately, Kollar-Kotelly must decide not only if jury misconduct occurred but if the violations prejudiced the jury’s deliberations, says David Schertler, a defense lawyer with Schertler & Oronato and a former prosecutor with the U.S. Attorney’s Office in Washington. “I think the judge is going to look very carefully at what impact there might have been on the verdict,” Schertler says. “Unless the judge determines the impact was great enough, I think the judge would be inclined to uphold the verdict.” Barry Boss, a defense attorney with Cozen O’Connor and a former federal public defender, adds that a high burden of proof must be met when seeking to set aside a verdict. Allegations of juror misconduct occasionally lead to a new trial, says Henry Asbill, another defense attorney with Cozen O’Connor and a former public defender. And in this case, where the trial was both lengthy and complex, Asbill suggests the decision will not be easy. “This could potentially upset a lot of work and a lot of effort and a lot of expense by a lot of folks,” Asbill says, adding, “If that’s the right result, that’s what judges do.” Though declaring a mistrial because of jury misconduct is rare, Asbill says it prompted a judge to retry a capital murder case he handled in Virginia several years ago. In its motion for a new trial for the robbery defendants, the defense cited a 1993 ruling by the U.S. Court of Appeals for the D.C. Circuit, which held that a juror’s visit to the scene of a crime warranted a new trial. When asked about the frequency of allegations of jury impropriety, Neil Vidmar, a law professor at Duke University, says that jurors occasionally fail to follow instructions, but seldom does it reach this level of alleged disregard. “In this case it seems like there were a couple of rogue jurors,” he says. CSI: D.C. One of those jurors, according to Peterson’s testimony, was a woman who discussed being inside one of the banks (she described to fellow jurors what the teller area looked like). Another juror talked openly in the jury room about visiting one of the crime scenes and described what she saw, Peterson testified. At the start of the trial, Kollar-Kotelly issued strict instructions, which, among other things, precluded jurors from visiting the crime scenes and pursuing their own investigations. “There is evidence that jurors visited the crime scene in order to test the credibility of key witnesses,” the defense wrote in its motion. “This information was discussed and considered by the jury during deliberations.” In a separate claim of jury misconduct, the defense alleges at least one juror remained in contact with the juror whom Kollar-Kotelly dismissed early in the trial. That juror was excused for suggesting to his counterparts that the defendants were guilty and should be voted that way quickly so they could go home. Defense attorneys maintain the juror who stayed in touch with the dismissed juror more than likely discussed the case with him. “It would defy common sense to think that these two jurors didn’t talk about why the juror was dismissed and the case,” the defense wrote in its motion. The prosecution, however, argues these claims of misconduct did not justify an evidentiary hearing, much less a retrial. “The likelihood that this created prejudice, even if it did occur, is too slight to merit a hearing, or a new trial,” the government wrote in its motion. In considering whether a new trial is warranted, the judge likely will weigh the strength of the prosecution’s case, says Boss. “One of the things which will factor prominently is how the judge perceived the strength of the government’s case,” he says. “One of the determinations she has to make is to what extent the misconduct undermines the verdict.” The fact that deliberations lasted more than three weeks, Boss adds, suggests the jury did not view the evidence as “obvious and clear-cut.”

Sarah Kelley can be contacted at [email protected].

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