Elliott, et al v. City of Eugene, et al

Filing 169

ORDER: Plaintiffs' Motion for a New Trial 166 is denied. Signed on 1/2/2019 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AYISHA ELLIOTT (BROWN), and
QUINTON RICHARDSON-BROWN
Plaintiffs,
v.

Case. No. 6:16-cv-00022-MC
ORDER

CITY OF EUGENE, OFFICER TREVOR
HART, SERGEANT WILLIAM
SOLESBEE, OFFICER MATHEW
STROPKO, and OFFICER CLIFFORD
SITES,
Defendants.
_____________________________
MCSHANE, Judge:
Following a jury verdict in favor of defendants, plaintiffs move for a new trial under
Federal Rule of Civil Procedure 60 and Federal Rule of Evidence 606(b)(2)(A) due to
alleged juror misconduct. Nearly five months after the verdict, the Court received a letter
from a juror. The juror was the lone vote in favor of finding for one plaintiff on one claim.1
That claim was one of excessive force by Sergeant William Solesbee against plaintiff Ayisha

1

The verdict was 8-0 in favor of defendant as to the other claim.

1—ORDER

Elliott Brown. The letter outlined the juror’s dissatisfaction with the process. Plaintiffs
move for a new trial based on one sentence in the letter: “Also, on the last day of
deliberations the jury foreman admitted to performing an experiment at home with his
mobile phone to determine whether one witness’s testimony could be true.”
When extraneous information has been presented to a jury, a moving party is
entitled to a new trial if there is “a reasonable possibility that the extrinsic evidence could
have affected the verdict.” Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (quoting
United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)). “ Because plaintiffs have not
demonstrated a reasonable probability that the alleged “experiment” here could have
affected the verdict, plaintiffs’ motion for a new trial is DENIED.
Based on the sentence in the letter about the foreman’s “experiment at home with
his mobile phone,” the Court ordered the juror to testify under oath to determine “the
circumstances of what transpired, the impact on the jurors, and whether or not the
misconduct was prejudicial.” Bell v. Uribe, 748 F.3d 857, 867 (9th Cir. 2014). At that
hearing, the Court attempted, perhaps without success, to walk an exceedingly fine line
between delving into the alleged experiment without inquiring into the nature of the
deliberations. The Court hoped to conclude, one way or the other, whether the
“experiment” was in fact extraneous information that could taint the verdict. See Hard v.
Burlington N. R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989) (“The type of after-acquired
information that potentially taints a jury verdict should be carefully distinguished from the
general knowledge, opinions, feelings, and bias that every juror carries into the jury
room.”).

2—ORDER

The juror testified that the foreman told the other jurors he was able to record a
video with his phone even though it had a low battery. According to the juror, prior to the
“experiment,” the foreman and “several of [the other jurors] talked about questioning
whether your phone could record on a low battery.” Even assuming the foreman conducted
an improper extraneous “experiment,” the outcome would not have been different absent
such an “experiment.” I note the juror testified that even before the “experiment,” several
jurors “already formed a negative opinion [regarding the testimony concerning the phone
recording], even though it hadn’t been verified.” The juror confirmed that the negative
opinion was formed even before the foreman conducted the experiment.
Additionally, the juror testified that in her opinion, “the jurors had already made up
their minds even before this conversation [regarding the experiment].” The jurors voted
before any talk of the experiment and the testifying juror was the lone dissenting vote. In
the juror’s opinion, no votes changed before or after the experiment. Finally, the juror
believed the other jurors had made up their minds before the foreman discussed his
experiment. Given the juror’s testimony, the experiment, even if the discussions transpired
exactly as she testified to, did not change any votes. As the parties agreed to accept a
verdict with a single dissenting vote, the experiment did not change the outcome. Before
the experiment, when the jurors had made up their minds, there was one dissenting vote.
After discussing the experiment, which did not alter any opinions, there remained that lone
dissenting vote. Because there is not a reasonable possibility that the experiment here
could have affected the verdict, plaintiffs’ motion for a new trial is DENIED. Dickson, 849
F.2d 405.

3—ORDER

Additionally, I find the testimony concerning the phone recording is not as critical to
plaintiffs’ case as argued by plaintiffs in the motion. Several witnesses testified to the
events at issue, including Ayisha Elliott Brown and her brother, who testified he attempted
to record the incident. The jurors heard audio of the incident. With the prevalence of cell
phones, the Court has little doubt each juror arrived at the courthouse on the first day of
trial with extensive personal knowledge regarding the workings of their own phones. Given
that, along with the somewhat tangential aspect of the recording to the claim at issue, it is
no surprise the dissenting juror herself testified that the discussion of the experiment did
not change a single juror’s mind about either remaining claim. It is easy, after the fact, to
point to certain evidence and argue it was critical to one’s case. Plaintiffs argue the jurors
necessarily believed the witness lied not only about the recording, but about the actions of
plaintiffs and the officers. That is a stretch. Based on my recollection of the testimony over
four days of trial, Mr. Richardson’s testimony about his attempt at recording the incident
was not critical to plaintiffs’ claims.
Additionally, even if the dissenting juror testified that jurors changed their minds
following the experiment, that would not per se entitle plaintiffs to a new trial. The
dissenting juror admitted several months had passed since the trial and that the entire
experience had been traumatic. Had her testimony been different, the Court would have
been bound to subpoena the other jurors to hear their testimony on the alleged
experiment. If that testimony conflicted with the dissenting juror’s testimony—i.e., if the
Court heard evidence that this discussion was not of an “experiment” but instead on the
jurors’ general personal knowledge of how phones worked—the Court would have to make
findings of fact. But the Court feels it has already waded too far into the actual
4—ORDER

deliberations. Given the testimony of the dissenting juror, I assume, without deciding, that
the foreman in fact performed an improper, extraneous experiment on his phone. Because
it is clear that the experiment did not alter the outcome, plaintiffs’ motion is DENIED.
IT IS SO ORDERED.
DATED this 2nd day of January, 2019.

__________/s/ Michael McShane____________
Michael McShane
United State District Judge

5—ORDER