El Chapo wants a new trial, asks court to investigate alleged juror misconduct

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Sinaloa cartel leader Joaquín “El Chapo” Guzmán is asking for a hearing that could lead to new trial, citing jurors’ alleged consumption of news on social media as the reason why his recent conviction should be overturned.

The defense made the request in a motion filed Tuesday morning with the U.S. District Court in Brooklyn. Chapo’s lawyers cite “bombshell disclosures” about misconduct detailed in a juror’s interview with VICE News as the basis for asking Judge Brian Cogan to hold a hearing to investigate alleged juror misconduct. If the allegations are confirmed, the defense wants the judge to invalidate the unanimous guilty verdict handed down against the 61-year-old Mexican kingpin on Feb. 12 after a grueling and costly three-month trial.

“Reports of jury misconduct, of course, are nothing new in high-profile cases,” the defense wrote (see PDF below). “One factor that sets these apart is a juror’s frank confession that panel members actively sought out and openly discussed the most sensational extrinsic information — including vile allegations that the defendant raped young girls — overtly defying the Court’s perpetual injunctions and cannily lying to Your Honor when asked about it.”

Chapo currently faces life in U.S. federal prison, and he remains held in a high-security Manhattan jail awaiting a June 25 sentencing hearing that may now be postponed as the court considers how to proceed.

Prosecutors have not yet issued a formal response to the defense motion. A spokesperson for the U.S. Attorney's Office in Brooklyn declined to comment.

The defense has requested an “evidentiary hearing” to investigate whether jurors disobeyed Judge Cogan’s orders by reading about the case on the internet and discussing evidence with each other prior to deliberations. The judge repeatedly warned the jury to avoid social media, but a juror who spoke with VICE News after the verdict said that order was ignored.

“You know how we were told we can't look at the media during the trial? Well, we did,” said the juror, who asked to remain anonymous “for obvious reasons.”

Phones and electronics were banned from the courtroom during Chapo’s trial, but many reporters used a downstairs media room to post news updates on Twitter. The juror said their social media use took place outside the courthouse.

The juror saw reports that Chapo was accused of drugging and raping girls as young as 13, and said at least five others did too. That information had been withheld from the jury after prosecutors argued it was “unfairly prejudicial” and unrelated to the drug, weapons, and money laundering charges in the case. Members of the jury conferred with each other and planned to tell the judge they were unaware of the rape allegations, the anonymous juror told VICE News.

Read: The 10 wildest moments and stories from Chapo's trial.

The defense motion, filed by attorney Marc Fernich, a specialist in post-conviction appeals who was hired after Chapo was found guilty, lists several reporters who covered the case on Twitter and cites a number of articles that jurors may have seen. The stories include “inflammatory evidence the Court had excluded and pronounced Guzman guilty before the proof had closed and the jury began to deliberate.”

“According to the juror’s VICE interview, at least five panel members actively followed and openly discussed ongoing media accounts of the trial, including extra-record charges that Guzman drugged and raped children and one of his lawyers carried on an adulterous affair with a client,” the defense wrote. “If so — and there’s no reason to doubt the juror’s word at this point — the panelists blithely disobeyed emphatic orders against both behaviors and committed undeniable misconduct.”

The jurors — eight women and four men, plus six alternates — were kept anonymous by the court over security concerns. Because their identities remain secret, VICE News was unable to contact other jurors to corroborate the misconduct claims. If there is a hearing as the defense requests, they may now face questioning under oath, and they could potentially be fined or held in contempt of court for their actions, though experts said it’s very rare for jurors to face jail time If caught lying under oath about their behavior, they could face perjury charges.

“This is not a situation where one or two jurors were mistakenly exposed to the most horrific press coverage about a defendant and owned up to it, promising not to let it influence their verdict,” Jeff Lichtman, one of Chapo’s trial attorneys, said in a statement. “This instead is a case where multiple jurors sought out the most prejudicial press coverage, filled with allegations which never made it into the trial as well as misinterpretations of evidence — and then plotted to lie about it to the judge. These are crimes.”

Chapo’s lawyers said they plan to “propose potential witnesses and address whether the hearing should be open or closed” at a later date. Because jurors are accused of lying to the judge, the motion also argued that the circumstances warrant “the defense counsel’s examining the witnesses personally or, at the very least, submitting questions in writing.” Read more: El Chapo's lawyers say they'll ask for a new trial. Here's what could happen next. The decision about how to proceed is entirely up to Judge Cogan. He may be loathe to grant a new trial because the evidence against Chapo was so overwhelming — and because the government has already invested millions in the case. Cogan not only has to confirm that jurors broke the rules, he must conclude that exposure to prejudicial information led to Chapo’s conviction. In this case, the bar is high given the mountain of evidence the government presented during Chapo’s trial. Still, experts like Suzanne Luban, a Stanford law professor who specializes in post-conviction appeals, said a retrial is within the realm of possibility given the circumstances. According to Luban, if Judge Cogan finds “that even one juror read a news article that contained prejudicial information” — such as the child rape allegations against Chapo — it should result in a new trial. “Jurors reading news of the case during the trial or deliberations is a serious breach, exposing jurors to facts from a source outside the four walls of the courtroom, a violation of the Sixth Amendment right to a fair, unbiased jury,” Luban said. “Even reviewing one such article would qualify, if proven. Same with jurors reading journalists’ Twitter feeds.” Other law scholars, defense attorneys, and independent jury experts who spoke with VICE News said Chapo’s case — already historic for its scope and magnitude — could now influence how courts across the country respond to juror misconduct in the internet era. “It is a very serious problem and I think this judge really sits on the precipice with a lot of folks in the judiciary potentially following what’s going to happen here,” said Jo-Ellan Dimitrius, a jury consultant for the defense team in the O.J. Simpson trial. “This is really going to set a precedent, and the judge knows this.” Read more: A key witness against Chapo believes in aliens, the Illuminati, and witchcraft. Juries are supposed to reach a verdict based solely on evidence and testimony heard inside the courtroom, but Facebook, Twitter, and Google have made it easy for curious jurors to seek out forbidden information about their case. Exactly how often that happens remains unclear, largely because jury deliberations are held in secret. Misconduct is typically only reported when jurors come forward or post publicly on social media.

Dimitrius said her firm’s polling has shown that 40 percent of prospective jurors say they would violate a judge’s instructions about social media. Other publicly available research suggests internet-related juror misconduct is rare. Only 33 federal judges out of nearly 500 surveyed in 2014 reported catching social media use by jurors during trial or deliberations. Another survey, also from 2014, of nearly 600 jurors from state and federal courts found that just 8 percent admitted being “tempted to communicate” about their case on social media.

There’s no group that actively tracks incidents of jurors breaking the rules with social media, but Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts, said her group is currently conducting a new study to determine exactly how often it happens. Right now, she said, it appears to be extremely common.

“If you’ve got a case going longer than two days, it would be highly unusual that you don’t have at least one person who does something,” Hannaford-Agor said. The question for judges, she added, is not whether a juror merely posted about the case on Facebook or Twitter, but whether they shared an opinion about the person on trial or viewed info that was deemed inadmissible or prejudicial, which is what the juror said happened in Chapo’s case.

Thaddeus Hoffmeister, a University of Dayton law professor who has written extensively about juries and the internet, warned that misconduct will become increasingly prevalent as the population shifts and includes more jurors grew up with technology.

“If they do it at the workplace and they do it at school, why wouldn't they do it in the courtroom?” Hoffmeister said. “You just don’t shut everything down. Look at the people who are becoming jurors. You’ve got people who grew up with this. For them, it’s ‘In Google we trust.’ That’s how they get life answers and information.”

Social media has already changed the way juries are chosen. While Chapo’s jury was anonymous, juror names are usually public, which allows attorneys or consultants to scour online profiles for biases, conflicts of interest, or insights about how a person would approach the case.

Amy Singer, a jury consultant who worked the Casey Anthony, Michael Jackson, and Jack Kevorkian trials, said some clients have requested social media monitoring to see what the general public is saying about their case and the evidence. The lawyers can then use that crowd-sourced feedback to tailor their arguments to the jury. Singer believes sequestration, which entails putting jurors in a hotel under the watchful eye of guards for the duration of the trial, is the only way to keep social media from tainting the jury in high-profile cases.

“If you got a high publicity case which is being played up by social media, you absolutely have to sequester the jury, no if ands or buts, end of story,” she said. “It’s really that simple.”

The length of El Chapo’s trial, which stretched for 14 weeks over Christmas and Thanksgiving, and the already astronomical cost of security made the judge reluctant to sequester the jury. The jurors were allowed to return home each day after court, but they were escorted to and from the courthouse by the U.S. Marshals Service.

Judge Cogan’s admonition about social media varied from day to day, but jurors were regularly told to stay away from any discussion or outside information about the case. But the judge rarely, if ever, mentioned the specific consequences for breaking the rules.

Joshua Dratel, a defense attorney who represented Ross Ulbricht, founder of the dark web drug marketplace Silk Road, said in one of his cases a juror friended the defendant on Facebook. He said he simply assumes that “crazy stuff” will happen with the jury. Jurors can be told to stay off social media, he said, but many people rely on technology to do their jobs or keep in touch with friends and family. Temporarily quitting the internet isn’t an option for most people.

“It’s not possible in the world we live in today,” Dratel said. “It’s a major problem. How do you take people who are saturated with this, people who can’t go 20 minutes without looking at their phones, and expect they’re going to go and not look at the internet? The temptation is extraordinary.”

Cover: Drug trafficker Joaquin 'El Chapo' Guzman is escorted to a helicopter by Mexican security forces at Mexico's International Airport in Mexico city, Mexico, on Saturday, Feb. 22, 2014. (Photographer: Susana Gonzalez/Bloomberg via Getty Images)