Nilgün Aykent Zahour and SM JUROR analyze the case of Wolfe v. Peery, No. 115CV00957DADSABHC, 2016 WL 7655159 (E.D. Cal. May 6, 2016), report and recommendation adopted sub nom. Wolfe v. Perry, No. 115CV00957DADSABHC, 2016 WL 4899738 (E.D. Cal. Sept. 15, 2016) where a juror felt threatened by a staring audience member and the defendant moved for a mistrial, arguing prejudice when the juror was not discharged. The trial court determined whether there was a rebuttable presumption of prejudice. #JurorMisconduct

1. SM JUROR presents our analysis of:
Wolfe v. Peery, No. 115CV00957DADSABHC, 2016 WL 7655159 (E.D. Cal. May 6, 2016), report and
recommendation adopted sub nom. Wolfe v. Perry, No. 115CV00957DADSABHC, 2016 WL 4899738
(E.D. Cal. Sept. 15, 2016).
When a juror voices that she feels threatened by a staring audience
member and is not discharged, does a party suffer prejudice sufficient
to grant a motion for mistrial?

2. Wolfe v. Peery, No. 115CV00957DADSABHC, 2016 WL
7655159 (E.D. Cal. May 6, 2016), report and
recommendation adopted sub nom. Wolfe v. Perry, No.
115CV00957DADSABHC, 2016 WL 4899738 (E.D. Cal.
Sept. 15, 2016).
United States District Court - Eastern District of California

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4. This presentation is brought to you by Nilgün Aykent Zahour, Esq.
Nilgün Aykent Zahour is the President and Founding Attorney
of SM JUROR. With over twenty-eight years of litigation
experience, her passion is to help attorneys identify, preserve
and advance juror misconduct issues at trial and on appeal in
this constantly evolving area of the law. Don’t let juror
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5. Facts:
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The juror misconduct issue involved the denial of defendant’s motion for mistrial or having Juror 104
excused, when it was discovered that Juror 104 told her father she was a juror in a gang case and
that she felt nervous or threatened by a staring audience member, who turned out to be the mother
of defendant’s girlfriend. The court specifically noted that it did not observe any inappropriate
behavior from any audience member. Upon further inquiry by the court, Juror 104 indicated that
she and other jurors felt “threatened” or “nervous” about being jurors in a gang case and having the
audience member stare. She also indicated she did not talk to her father about the facts of the case
and that she could remain fair and impartial. The court then individually interviewed each juror
about any fears they may have in serving on the jury. Each juror said they could remain fair and
impartial and could render a decision based on their instructions and the law. The defense then
moved for a mistrial, arguing that the jury was tainted by the court’s inquiry of whether they were
afraid of the audience member. The court denied the motion, finding that every juror indicated that
they could fulfill their duties and be fair and impartial and that they would not be influenced by “this
small issue.”

6. Circumstances under which a motion for mistrial
should be granted: Is there prejudice?
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“A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been
irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court
ruling denying a mistrial.” Wolfe v. Peery, No. 115CV00957DADSABHC, 2016 WL 7655159, at *23 (E.D.
Cal. May 6, 2016), report and recommendation adopted sub nom., Wolfe v. Perry, No.
115CV00957DADSABHC, 2016 WL 4899738 (E.D. Cal. Sept. 15, 2016).
“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by
admonition or instruction.” Id.
“Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.” Id.
“It is not an abuse of discretion when a trial court denies a motion for mistrial after being satisfied
that no injustice has resulted and the party's chances of receiving a fair trial have not
been irreparably damaged.” Id.

7. The awareness of possible juror misconduct:
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“When a trial court is aware of possible juror misconduct, the court ‘must make whatever inquiry
is reasonably necessary’ to resolve the matter.” Wolfe v. Peery, No. 115CV00957DADSABHC, 2016
WL 7655159, at *23 (E.D. Cal. May 6, 2016), report and recommendation adopted sub nom.,
Wolfe v. Perry, No. 115CV00957DADSABHC, 2016 WL 4899738 (E.D. Cal. Sept. 15, 2016).
“Although courts should promptly investigate allegations of juror misconduct ‘to nip the problem
in the bud’, they have considerable discretion in determining how to conduct the investigation.”
Id.
“The court's discretion in deciding whether to discharge a juror encompasses the discretion to
decide what specific procedures to employ including whether to conduct a hearing or detailed
inquiry.” Id.

8. The discharge of a juror
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“Section 1089 authorizes the trial court to discharge a juror at any time before or after the final
submission of the case to the jury if, upon good cause, the juror is ‘found to be unable to perform his
or her duty.’ ” Wolfe v. Peery, No. 115CV00957DADSABHC, 2016 WL 7655159, at *23 (E.D. Cal. May 6,
2016), report and recommendation adopted sub nom., Wolfe v. Perry, No. 115CV00957DADSABHC,
2016 WL 4899738 (E.D. Cal. Sept. 15, 2016).
“Once a trial court is put on notice that good cause to discharge a juror
may exist, it is the court's duty ‘to make whatever inquiry is reasonably
necessary’ to determine whether the juror should be discharged.” Id.
“Such an inquiry is central to maintaining the integrity of the jury system,
and therefore is central to the criminal defendant's right to a fair trial.” Id.
“Whether to remove the juror is left to the discretion of the trial court, whose
decision for removal is reviewed by “asking whether the grounds for such removal
appear in the record as a demonstrable reality.” Id.

9. Factors to be considered when determining whether the
presumption of prejudice has been rebutted
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“Among the factors to be considered when determining whether the
presumption of prejudice has been rebutted are
• ‘the nature and seriousness of the misconduct, and
• the probability that actual prejudice may have ensued.’” Wolfe v. Peery, No.
115CV00957DADSABHC, 2016 WL 7655159, at *25 (E.D. Cal. May 6, 2016) ,
report and recommendation adopted sub nom., Wolfe v. Perry, No.
115CV00957DADSABHC, 2016 WL 4899738 (E.D. Cal. Sept. 15, 2016).

10. Holding:
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There was no prejudicial juror misconduct. Juror 104 did not talk to her father
about the facts of the case. She had a fear of an audience member, but not of the
defendants. Upon an exhaustive inquiry of each and every member of the jury, the
trial court found that each juror could remain fair and impartial and fulfill their
duties. Defense counsel did not ask the panel members and additional questions
despite being given the opportunity to do so. The trial court did not observe any
inappropriate behavior from the audience member. The trial court determined that
the jury was not tainted in any way by Juror 104’s conduct or by its inquiry into how
other jurors may have felt about the audience member. The reviewing court
deferred to the trial court’s determinations of credibility and held there was no
error in the denial of the motion for mistrial.

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