A juror says the conduct of U.S.
District Judge David Nuffer was "at times downright embarrassingly
nasty" toward the defendants and an attorney during the trial of
entrepreneur Jeremy Johnson. Another says she was "very disturbed by what
I witnessed" during the trial earlier this year.
Affidavits from the two jurors and
a sealed affidavit from a third juror were part of Johnson's attorneys' motion
asking that the comments be taken into account when Nuffer rules on motions for
a new trial and as factors in sentencing.
The jury sat through a two-month
trial and, after six days of deliberations, found Johnson guilty in March of
eight charges of providing false information to a bank. But the panel also
acquitted him on 78 charges related to allegations of bank fraud, a
statistically remarkable outcome for a defendant who acted as his own attorney.
Nuffer during the trial was at
times openly hostile to the two defendants who represented themselves, and
especially to defense attorney Marcus Mumford, who clashed with the judge
numerous times. Nuffer summoned security officers to the front of the court several
times during the trial after Mumford tried to argue a point; one day, Nuffer
called several timeouts to keep the courtroom silent for a minute.
Under federal rules of evidence, a
juror is not allowed to testify about things that occur during deliberations,
on the effect of anything concerning a juror's vote or on the mental processes
that led to a verdict.
But Johnson's attorneys, Karra
Porter and Mary Corporon, who started representing Johnson after the verdict,
argue that juror statements can be used in this case because Johnson is arguing
that his constitutional rights to a fair trial were violated. Such statements
also can be used to show "extraneous prejudicial information" or an
improper "outside influence" on the jury and as part of an inquiry
into an "ambiguous or inconsistent verdict," the attorneys wrote in
their motion.
Prosecutors asked Nuffer to strike
Johnson's motion within hours of its filing.
The motion violates a court's order
that prohibits more filing in support of Johnson's motion for a new trial or
acquittal, they argued.
Johnson's motion "is legally
frivolous," Assistant U.S. Attorney Jason Burt argues, "and it seeks
to admit affidavits from jurors in Johnson's trial that appear to violate"
Nuffer's order forbidding direct contact with jurors unless approved by the
court.
"Neither Johnson nor his
counsel get to ignore court orders simply because he is Jeremy Johnson and
whatever filings he makes are sure to draw press attention," Burt wrote.
The filing violates rules of evidence
and is not supported by prior court decisions, he said.
In her affidavit, the juror
identified as No. 9, and identified in media accounts as Kathie Cox, said she
found Nuffer's tone toward the prosecutors from the U.S. attorney's office was
"level, calm and with professionalism."
In contrast, Cox saw Nuffer's
treatment of the defense "in a manner that was brusque, short on patience
and at times downright embarrassingly nasty."
Juror No. 6, Shelly Riley, said she
had served as a courtroom observer for the Utah Judicial Performance Evaluation
Commission and was trained to observe and evaluate judges.
Riley labeled as "very
disturbing" Nuffer's treatment of Johnson, codefendant Ryan Riddle and
Mumford, who represented the third defendant, Scott Leavitt.
"Based on what I observed
during the trial in my role as a juror, I reached the unavoidable conclusion
that Judge Nuffer was very openly biased in favor of the prosecution and
against the defense," Riley said in an affidavit.
She also cited comments by Nuffer
during the trial that she said "were misconstruing evidence that the
defense was presenting."
"I was offended how he treated
Mr. Mumford in particular like a child," Riley said, "making a show
of having to call the court security officers a number of times when Mr.
Mumford was speaking, as if he was saying something so offensive that it was
contrary to the law."
The defense, Cox said, was
"handcuffed by the judge, and he wouldn't let important evidence in."
During the trial, Nuffer also made
sure the record was complete a number of times "for the appeal," Cox
said. That troubled her because "it seemed to the jury that the judge was
assuming the defendants would and should be found guilty."
Nuffer's comments on an appeal,
Riley said, leaked into deliberations when the jury got stuck on an issue and
some jurors tried to resolve differences by saying that the defendants could
"just appeal it."
The judge's remarks about appeal,
Porter and Corporon argue, caused the jury to "reach its verdict, not
based upon the evidence or the law, but rather upon the court's comments."
Riddle also was convicted of the
eight counts. He and Johnson are scheduled to be sentenced July 29.
Leavitt was acquitted of all
charges.
The allegations stemmed from
Johnson's operation through 2010 of an online marketing company called I Works
that sold goods or services, such as details on how to obtain government grants
for personal expenses.
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