The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE.
Before the court is the joint motion of defendants Clayton, Sanders, Stokes, Blackman, Carpenter, Meyers, Stephenson, Stewart, West, Gully, Tilford and Wilson to conduct a hearing, pursuant to Federal Rule of Evidence 606(b), to inquire into the validity of the guilty verdicts rendered against them. The government has filed a consolidated response.
The motion, which asks the court to inquire of jurors and others, is based upon post-verdict assertions to the media. In support, defense counsel have submitted copies of newspaper, magazine, and television accounts of certain post-verdict statements. Of these statements, those attributed to several jurors were made after the verdicts were returned in open court and after the polling of the individual jurors. However, no juror has made a post-verdict statement under oath. In addition, the news accounts submitted also include statements made by several defense attorneys.
Our Anglo-American scheme of ordered liberty mandates that, before the imposition of punishment, criminal defendants be given "fair trials designed to end in just judgments." Equally fundamental is a criminal defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949). So fundamental is this right that it "lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn." Crist v. Bretz, 437 U.S. 28, 37, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978). Consistent with the double jeopardy provisions of the fifth amendment, a judge may not declare a mistrial over the defendant's own objections, even for the defendant's own benefit, unless there is a "manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L. Ed. 165 (1824); accord Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973).
Our confidence in the jury system would be misplaced if jurors were constrained from deliberating freely. Inquiry, or even the threat of inquiry, into jury deliberations is necessarily contrary to free deliberation. Consequently, the privileged and secret nature of grand and petit juries has been recognized back to the 17th century and was imported into our federal common law. In Clark v. United States, 289 U.S. 1, 13, 77 L. Ed. 993, 53 S. Ct. 465 (1938), the Court recognized a privilege for the votes and deliberations of a petit jury, noting that references to the privilege "bear with them the implication of an immemorial tradition." Eventually, with respect to grand juries, these privileges were codified in Fed. R. Crim. P. 6, as "an integral part of our criminal justice system." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 n. 9, 60 L. Ed. 2d 156, 99 S. Ct. 1667 (1979).
It is not surprising that the roots of the tradition of limiting collateral attacks on jury verdicts are as long as those of the privilege for jury deliberations. Historically, in 1785, in Valise v. Delaval, Lord Mansfield refused to consider affidavits showing that the jurors had agreed on a verdict by lot, on the ground that "a witness shall not be heard to allege his own turpitude." 1 T.R. 11, 99 Eng.Rep. 944 (K.B. 1785). The Supreme Court has long since recognized that attacking a verdict based upon the internal deliberations of a jury is unwise. In McDonald v. Pless, 238 U.S. 264, 59 L. Ed. 1300, 35 S. Ct. 783 (1915), the Court stated:
Let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of fact which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation -- to the destruction of all frankness and freedom of discussion and conference.
238 U.S. at 267-68. Scholars who have considered the propriety of inquiring into the verdicts reached by jurors have not quarreled with the Court's conclusion. Professor Wigmore discussed the issue in the following terms:
8 Wigmore, Evidence § 2349 (McNaughton ed. 1961).
The law views the verdict of the jurors as reflecting the conscience of the community. See United States v. Grier, 866 F.2d 908, 929 (7th Cir. 1989). The viability of the jury as a decision making body is dependent upon the interaction of individuals in a collective process. There is always the chance that one juror with irrational ideas will thwart the fair minded, rational other eleven. This is a risk we willingly take. The quest for "perfect" justice will always be limited by human frailties. Yet, this limitation, inherent in entrusting fundamental decisions to the collective determination of individual members of society, is also our system's greatest asset. One juror may also be the protector of truth and justice and foil the majority bent upon an erroneous verdict. The balancing mechanism the law provides is that the verdict of the jury be unanimous. Jury unanimity rests upon the concept of complete and full deliberation in the jury room.
Reliance upon complete and full deliberation is founded on the premises that those deliberations are based upon only that evidence admitted at trial. "A criminal defendant has a right to be tried on the basis of the evidence admitted at his trial, . . . ." United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc). Reverence for the deliberative process is not justified when the deliberations are not within the parameters of the law, because the jury was subject to extraneous information or influence. Where this may have happened, the fear of interfering with jury deliberations in general, which prevents inquiry into the specifics of an individual jury deliberation, is outweighed by the concern for an erroneous result in the individual case.
Therefore, although innumerable cases have applied Lord Mansfield's rule and the rational in McDonald v. Pless, see, e.g., Michaels v. Michaels, 767 F.2d 1185, 1204-05 (7th Cir. 1985), the Supreme Court, since 1892, has distinguished between evidence as to extraneous influences and evidence as to the operation of the jury's thought processes. In Mattox v. United States, 146 U.S. 140, 36 L. Ed. 917, 13 S. Ct. 50 (1892), the Court held admissible jurors' affidavits indicating that they had read newspaper comments pertaining to the trial during their deliberations. The Court quoted from a Massachusetts Supreme Judicial Court opinion in announcing the following rule:
[A] juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.
146 U.S. at 149, quoting Woodward v. Leavitt, 107 Mass. 453 (1871).
Fed. R. Evid. 606(b), which governs the issue before the court, is essentially a codification of the rule announced in Mattox. Specifically and strictly limiting both the basis and the nature of any inquiry into verdict validity, it provides as follows:
Fed. R. Evid. Rule 606(b) -- Inquiry into validity of verdict or indictment. -- Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the bear upon any juror. Nor may a juror's ...