Tarango v. McDaniel, No. 13-17071 [March 3, 2016]
Tarango claimed a violation of his right to due process where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. The Court held “that the Nevada Supreme Court’s decision was contrary to Mattox v. United States, 146 U.S. 140 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a ‘communication’ and did not investigate the prejudicial effect of the police tail.” In Mattox the Supreme Court “established a bright-line rule: any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing the contact was harmless.” Clearly established federal law requires a criminal trial court to consider the prejudicial effect of any external contact, whether or not it amounts to a “communication.” Further, the external contact need not be intentional. “Mattox and its progeny further establish that undue contact with a juror by a government officer almost categorically risk influencing the verdict.” The court also stated that “consistent with the anti-impeachment rule, this court permits the introduction of limited evidence of a juror’s state of mind to prove juror misconduct.” On de novo review it remanded to the district court to hold an evidentiary hearing to allow Tarango to establish prejudice.
UPDATE: The Court filed an amended opinion and dissent on Sept. 16, 2016, leaving the case substantially the same and denying a rehearing.