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This article originally appeared on VICE US.
Almost immediately after a federal jury in Brooklyn convicted Joaquín “El Chapo” Guzmán on all 10 counts of his indictment, the Sinaloa cartel leader’s lawyers vowed to appeal the unanimous guilty verdict. Now they have formally told the judge they plan to seek a new trial, citing a report from VICE News about alleged juror misconduct as the basis for the request.
In a letter sent Friday to Judge Brian Cogan, El Chapo’s defense team asked for additional time to prepare as they make the case for a new trial. The letter characterizes the Feb. 20 VICE News article as stating “that multiple jurors engaged in misconduct by intentionally violating the Court’s direction” to avoid media coverage of the trial and not to communicate with one another about the trial prior to deliberations.
“Mr. Guzmán intends to file motion for a new trial based on the disclosures in the article and to request an evidentiary hearing to determine the extent of the misconduct,” defense attorney Eduardo Balarezo said in the letter.
Balarezo declined to comment further when reached by VICE News.
A spokesperson for the federal prosecutor’s office in Brooklyn declined to comment.
In the VICE News exclusive interview with one of El Chapo’s anonymous jurors, the person claimed that multiple jurors had defied Judge Cogan’s orders by following news about the case and discussing developments with one another prior to deliberations. The juror’s statements could not be independently verified.
El Chapo’s conviction still stands, and he remains jailed at a high-security federal prison while he awaits a June 25 sentencing hearing. He faces a mandatory sentence of life in prison with no chance for parole.
The defense typically has two weeks after a guilty verdict to request a new trial. The letter from Chapo’s lawyers seeks an additional 30 days to prepare. The letter says the defense “has sought the government’s consent” for the extension, but “the government has not responded as of the time of filing.”
Independent experts who spoke with VICE News said a new trial is unlikely but within the realm of possibility, if the defense can persuade the judge that the jurors were exposed to news coverage that influenced the verdict.
Cliff Gardner, a lecturer at the University of California Berkeley School of Law who specializes in post-conviction representation, said reading about the case in the press is “an enormously significant type of juror misconduct.”
“I don’t see how it’s fair at all to the defendant, even perhaps the world’s most unpopular defendant, not to at least get to the bottom of what happened.”
But, he added, “the bar is high” for Chapo to receive a new trial. The defense will have to prove that jurors were indeed reading about the case or breaking other rules. And that, he explained, could be difficult given the anonymity involved.
“The government is probably going to argue that it didn't occur,” Gardner said. “They'd have to have a hearing to see if in fact jurors did ignore the court’s admonitions.”
Suzanne Luban, an expert on post-conviction issues at Stanford Law School, said the court “will be obligated to hold a hearing where the jurors will be questioned one at a time with both lawyers present, in a closed proceeding.”
“If the judge believes that even one juror read a news article that contained prejudicial information, by a preponderance of the evidence (simply 51 percent), the judge will order a new trial,” Luban said.
The prospect of a new trial for El Chapo, however unlikely, is daunting. The trial itself lasted for nearly three months and was the culmination of decades of work by U.S. law enforcement and federal prosecutors. Federal authorities have not disclosed how much it cost, but with the intense security and the logistics of bringing witnesses from across the U.S. and Latin America, the budget was presumably astronomical — certainly in the millions.
Luban noted that a retrial for Chapo could be held outside of New York City.
“It will be very difficult to find an impartial jury to retry El Chapo,” Luban said. “If the conviction is overturned due to juror misconduct, which is likely, his attorneys will likely move for a change of venue.”
El Chapo faces indictments in six U.S. District Courts around the country, and potential locations would include El Paso, Chicago, and San Diego. Luban explained that it’s possible Judge Cogan could continue to preside over the case in another district, but the challenge will be finding 12 jurors who haven’t already heard too much about El Chapo.
“It is hard to imagine a city where there would be a sufficient pool of potential jurors who have not seen the New York Times headlines about the revelations at El Chapo‘s trial and the inflammatory facts that were excluded,” she said.
Duncan Levin, a former federal prosecutor in the Eastern District of New York, said that even if the jurors were to admit reading about the case in the media, it might not be enough for Chapo to get a new trial. The juror who spoke to VICE News was adamant that the case was decided on the evidence alone, which might factor into Judge Cogan’s decision about how to proceed.
“If all of the jurors said, ‘Yeah we saw this extrajudicial material, but it didn’t actually influence our verdict,’ that would probably weigh pretty heavily in not granting a new trial,” Levin said. “But if, on the other hand the jurors couldn’t really explain sufficiently whether it did influence the verdict, that might be used as the basis to order a new trial.”
“It will be very difficult to find an impartial jury to retry El Chapo.”
Levin added that the court should be obligated to investigate whether the jurors in El Chapo’s case were exposed to news reports or other information that wasn’t heard inside the courtroom.
“I don’t see how it’s fair at all to the defendant, even perhaps the world’s most unpopular defendant, not to at least get to the bottom of what happened,” he said.
After reading the guilty verdict against El Chapo last week, Judge Cogan thanked the jury for their work on the case. “The way you went about it was really quite remarkable, and, frankly, it made me proud to be an American."
Cogan told the jurors they could shed their anonymity and speak to the media, but he advised against it. “Once that door is open, it can't be closed again,” he warned.
Luban, the Stanford expert, said it’s unlikely — but not impossible — that the jurors would face legal repercussions if there’s proof they defied the judge’s orders during the trial.
“Technically, they could be held in contempt by the court,” Luban said. “But realistically, judges don’t punish jurors unless they accept a bribe or something really heinous.”
Suja Thomas, a University of Illinois College of Law professor with expertise in jury issues, said punishing jurors for reading news coverage and discussing the case “is probably less likely than a new trial” for El Chapo. Doing so, she explained, would make it even more difficult to find people willing to serve on federal juries.
“We want people to serve and we want people to do what they’re told, and for the most part that’s what happens,” Thomas said. “It’s hard to avoid media. Even if people are saying they did this, these are things that will have to be talked about — in this day and age, how do you live a normal life and not look at the media, especially in a trial this long?”
The internet and social media have already impacted dozens of trials around the country as jurors struggle to go offline while they serve on a case. The issue isn’t new — a 2010 report from Reuters found 90 cases where verdicts were challenged because of alleged Internet-related juror misconduct, including 28 instances where judges granted new trials or overturned verdicts. But El Chapo’s case would be the highest-profile example yet.
Considering the length of the trial and the frenzied coverage of it, El Chapo’s jurors faced a unique challenge when they were ordered to avoid media and discussions of the case.
There was also speculation that jurors could suffer PTSD due to exposure to graphic testimony, personal safety fears, and “juror stress” from the grueling trial.
“Just all of a sudden an individual is thrust into a very significant and important fact-finding role, so obviously their conduct can be affected by the circumstances of the case,” said Ken Magidson, a former U.S. Attorney for the Southern District of Texas. “It’s something that doesn’t happen to you every day. ‘I’m asking you to sit in judgement of El Chapo, who could be or is alleged to be one of the most significant Mexican cartel leaders of all time.’”
Even so, Magidson said jurors were obligated to follow instructions and honor their oath to the court. Magidson called the possibility of a contempt of court charge against one or more of the El Chapo jurors “highly unlikely,” but he said they could also be questioned under oath about their actions, when they would be subject to perjury charges.
Juror advocates like Thomas warn that punishing the jurors for breaking the judge’s admonition, even when the stakes are as high as they are in El Chapo’s case, would set a dangerous precedent. Thomas, who wrote a book about the role of juries in the American justice system, said that unless Chapo’s lawyers can prove he didn’t receive a fair trial, the jury’s verdict ought to stand.
“Outside of extraordinary circumstances, it’s problematic to start questioning jurors and questioning the process,” Thomas said. “This is our democratic process. It’s one of the greatest institutions we have. When the jury actually does sit, it’s a good thing. We don’t want to have the judge or other players in the government question the institution too much.”
Cover: In this courtroom drawing, defendant Joaquin "El Chapo" Guzman, second from left, listens to the judge while staring at the jury as the verdict is read in his drug trafficking trail, Tuesday, Feb. 12, 2019 in New York. Seated at the defense table, from left are, an interpreter, Guzman, and defense attorneys William Purpura and Eduardo Balarezo. (Elizabeth Williams via AP)