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In 2004, a jury found Petitioner Erick Hall guilty of first-degree murder, kidnapping and rape. Petitioner was sentenced to death. Petitioner appealed his conviction, and was appointed a public defender. In 2005, Petitioner petitioned the district court for post conviction relief. In that proceeding, the district court limited contact between Petitioner's counsel and the jurors that convicted him. Petitioner moved for reconsideration. In 2006, Petitioner moved to depose his trial attorneys and their investigator. The court allowed the deposition of trial counsel, but denied leave to depose the investigator. Petitioner's petition for post conviction relief was ultimately denied. On appeal to the Supreme Court, Petitioner challenged all of the district court's denials pertaining to the interview and deposition of jurors and key witnesses so that he could mount a successful appellate petition for relief. The Supreme Court found that the district court did not abuse its discretion in denying Petitioner's requests. The Court affirmed the district court's decision on all issues.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 35055
ERICK VIRGIL HALL,
Boise, December 2010 Term
2011 Opinion No. 67
STATE OF IDAHO,
Filed: May 27, 2011
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Thomas F. Neville, District Judge.
Permissive appeal from two interlocutory orders, district court decision affirmed.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Ian H.
Thomson, Deputy State Appellate Public Defender argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. L.
LaMont Anderson, Deputy Attorney General, argued.
This case comes before this Court on a permissive appeal from two interlocutory orders
((1) Order Granting in Part and Denying in Part Petitioner’s Supplemental Motion for Discovery
and, (2) Order Denying Petitioner’s Motion for Juror Contact) that were entered by the district
court while capital post-conviction proceedings were pending for Erick Virgil Hall. Hall argues
that the district court erred in prohibiting post-conviction contact with the jurors who deliberated
in the underlying criminal case, and in denying Hall’s motion for a court-ordered deposition of
his trial counsel’s investigator. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2004, a jury found Hall guilty of first-degree murder, first-degree kidnapping and rape.
The jury also found four statutory aggravating factors, and after weighing each individual
aggravating factor against the mitigating circumstances, found that it would not be unjust to
impose the death penalty on Hall. Hall was subsequently sentenced to death for first-degree
murder, with consecutive unified fixed life sentences for the offenses of first-degree kidnapping
and rape; such judgments were entered on January 19, 2005. Hall filed a Notice of Appeal on
January 21, 2005, and the State Appellate Public Defender was appointed to represent Hall
during post-conviction proceedings.
On March 1, 2005, Hall filed a petition for post-conviction relief, pursuant to I.C. § 192719. On approximately January 6, 2006, the district court orally limited contact between Hall’s
attorneys and the jurors. Hall filed a motion for reconsideration on January 20, 2006. At a
hearing on February 15, 2006, the district court held that counsel could not contact jurors without
the prior express permission of the court. On June 1, 2007, Hall filed a motion for juror contact
with an attached memorandum in support of that motion. The State objected to Hall’s motion,
and at a hearing on August 8, 2007, the district court considered both the general and specific
inquiries proposed by Hall and denied the motion for juror contact. The district court issued a
written order denying Hall’s motion on September 13, 2007.
On January 5, 2006, Hall filed a motion seeking to depose the attorneys who had
represented him at trial, and their investigator, Glenn Elam. The district court allowed the
deposition of trial counsel, but denied leave to depose Elam. In response to renewed and
supplemental requests for the same, the district court considered the matter fully at a hearing and
entered a written order on September 17, 2007, denying leave to depose Elam, finding that “[n]o
showing has been made by the petitioner that deposition is necessary to protect his substantial
rights.” On August 23, 2007, Hall filed a motion for permission to appeal that order, submitting
a supporting affidavit written by his own investigator, Michael Shaw. At a hearing on November
15, 2007, the trial court denied Hall’s motion, expounding upon his reason for denying both
contact with the jury and the deposition of Elam. On January 18, 2008, a written order was
entered denying Hall’s motion. Hall filed a motion for permission to appeal to this Court on
November 29, 2007, which was granted on February 27, 2008.
II. ISSUES ON APPEAL
1. Whether the district court had the inherent authority to enter an order restricting appellate
counsel’s contact with jurors.
2. Whether the district court violated Hall’s attorneys’ First Amendment rights by entering
an order forbidding contact with the jurors absent prior court approval.
3. Whether the district court abused its discretion in denying Hall’s motion for post-verdict
communications with the jurors.
4. Whether the district court abused its discretion in denying Hall’s motion to depose his
trial counsel’s investigator.
III. STANDARD OF REVIEW
An application for post-conviction relief initiates a proceeding that is civil in nature.
Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010). “When considering alleged
violations of constitutional rights, this Court defers to the district court’s findings of fact unless
clearly erroneous, but exercises free review over the trial court’s determination as to whether
constitutional requirements have been satisfied in light of the facts found.” State v. Thorngren,
149 Idaho 729, 735, 240 P.3d 575, 581 (2010) (internal quotation omitted). “The decision to
authorize discovery during post-conviction relief is a matter left to the sound discretion of the
district court. Unless discovery is necessary to protect an applicant’s substantial rights, the
district court is not required to order discovery.” Baldwin v. State, 145 Idaho 148, 157, 177 P.3d
362, 371 (2008) (internal citation omitted). See also I.C.R. 57(b). “In order to be granted
discovery, a post-conviction applicant must identify the specific subject matter where discovery
is requested and why discovery as to those matters is necessary to his or her application.” State
v. LePage, 138 Idaho 803, 810, 69 P.3d 1064, 1071 (Ct. App. 2003). As this Court stated in
Henderson v. Henderson Investment Properties, L.L.C.:
To determine whether there is an abuse of discretion this Court considers whether
(1) the court correctly perceived the issue as one of discretion; (2) the court acted
within the boundaries of such discretion and consistently with legal standards
applicable to specific choices; and (3) the court reached its decision by an
exercise of reason.
148 Idaho 638, 639–40, 227 P.3d 568, 569–70 (2010) (internal quotation omitted).
Hall appeals from two interlocutory orders entered by the district court in post-conviction
proceedings: (1) an order denying a motion for post-verdict contact with jurors; and (2) an order
denying a motion to depose his trial counsel’s investigator. Hall argues that it was a violation of
due process and free speech for the district court to impose prior restraints on his attorneys’
contact with the jurors, and that the district court further abused its discretion in denying his
specific motion for juror contact. Hall also argues that his due process rights were violated
through the district court’s denial of his request to depose his trial counsel’s investigator, as Hall
had shown that the protection of his substantial rights necessitated that deposition. These issues
shall be addressed in turn.
A. The district court had the authority to issue its order prohibiting appellate counsel from
contacting trial jurors absent express approval by the court.
Hall argues that as no statute, or rule promulgated by this Court, limits contact with the
jury, the district court lacked the authority to enter its order. The State responds that it is within
the inherent authority of the district court to protect jurors and the efficient operation of the
In Townsel v. Superior Court, the Supreme Court of California was confronted with an
identical question. 979 P.2d 963 (Cal. 1999). The Court first noted that, subsequent to the
district court entering an order prohibiting juror contact absent prior court approval, the
California Code of Civil Procedure had been amended to provide a similar rule. Id. at 964. The
Court noted that trial courts have “inherent as well as statutory discretion to control the
proceedings to ensure the efficacious administration of justice and that, in exercising such
discretion, the trial court may deny to the losing party in a legal proceeding unqualified access to
the jury after the conclusion of the trial.” Id. at 968 (internal quotations omitted). The Court
affirmed the trial court’s authority to enter such an order. Id. at 969. See also Sheppard v.
Maxwell, 384 U.S. 333, 363 (1966) (“The courts must take such steps by rule and regulation that
will protect their processes from prejudicial outside interferences.”); Miller v. United States, 403
F.2d 77, 81–82 (2nd Cir. 1968) (upholding inherent authority of court to order all contacts with
the jury to occur through the supervision of the court); Talbot v. Ames Const., 127 Idaho 648,
652, 904 P.2d 560, 564 (1995) (discussing powers inherent to the judicial branch).
We find that a district court has the inherent authority to enter an order restricting contact
with the jury, including post-verdict contact.
B. The district court did not err in prohibiting Hall’s counsel from contacting jurors
without prior court approval.
Hall argues that the district court violated his attorneys’ First Amendment rights, as
applied to the State by the Fourteenth Amendment, in creating a prior restraint on their speech by
forbidding contact with jurors absent prior court approval. See Alexander v. United States, 509
U.S. 544, 550 (1993) (“The term prior restraint is used to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time that such
communications are to occur. Temporary restraining orders and permanent injunctions—i.e.,
court orders that actually forbid speech activities—are classic examples of prior restraints.”)
(Emphasis in the original) (internal quotation omitted).
Hall contends that this Court should apply the test developed by the United States
Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), to determine whether
the district court’s order violated the Constitution. In Gentile the Court reviewed the Nevada
Supreme Court’s determination that an attorney had violated Nevada’s rule restricting attorney
statements to the media. Id. The State Bar of Nevada’s sanctioning of the attorney was reversed,
as the United States Supreme Court found the rule unconstitutionally vague as applied. Id. at
1048. The Court went on to consider the appropriate balance to be struck in regulating contact
between attorneys and the press, where attorneys are representing a party in a pending case, and
specifically whether the standard employed by Nevada (whether the restrained speech created a
substantial likelihood of materially prejudicing the administration of justice) was constitutional.
See id. at 1065–74. The Court found that the Nevada rule was constitutional as it adequately
protected the First Amendment rights of attorneys while also putting a premium on the State’s
interest in a fair trial. Id. at 1075. 1
The issue before this Court is materially different from that presented in Gentile. In
Gentile the Court addressed the circumstances wherein prior restraints may be placed on an
attorney’s ability to make extrajudicial statements without violating that attorney’s First
Amendment rights. The issue before this Court pertains to contact with jurors as potential
witnesses during post-conviction discovery, contacts which are part of a judicial proceeding.
Therefore standards governing extrajudicial attorney speech are inapplicable.
It is well established that attorneys acting as advocates in a judicial proceeding do not
enjoy the same First Amendment protections as the general public, both due to their membership
in a specialized profession and their status as officers of the court. See Gentile, 501 U.S. at 1066
(“Membership in the bar is a privilege burdened with conditions. . . .”) (quoting In re Rouss, 116
N.E. 782, 783 (N.Y. 1917)). See also In re Sawyer, 360 U.S. 622, 646–47 (1959) (Stewart, J.,
concurring) (“Obedience to ethical precepts may require abstention from what in other
circumstances might be constitutionally protected speech.”); Haeberle v. Tex. Int’l Airlines, 739
F.2d 1019, 1022 (5th Cir. 1984) (“By voluntarily assuming the special status of trial participants
It is worth noting that the Court in Gentile did not hold that the Nevada rule constituted the constitutional
minimum required under the First Amendment. Id. at 1075 (“We agree with the majority of the States that the
‘substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance . . . .”). See
also Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 431 (Tex. 1998) (noting that the Court in Gentile
did not adopt the substantial likelihood of material prejudice standard as “defining the outer limit on restrictions of
lawyers’ speech, but merely held that it was ‘constitutionally permissible.’”).
and officers of the court, parties and their attorneys subject themselves to greater restraints on
their communications than might constitutionally be applied to the general public.”); Journal
Pub’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986) (“[W]hile a court may broadly
proscribe attorney and party contact with former jurors, it does not have the same freedom to
restrict press interviews with former jurors.”). Idaho Rule of Professional Conduct 3.5 provides,
inter alia, “[a] lawyer shall not: . . . (c) communicate with a juror or prospective juror after
discharge of the jury if: (1) the communication is prohibited by law or court order . . . .”
Rules restricting attorneys’ post-verdict contacts with jurors are widespread, and in the
absence of local rules regulating such contacts the issue of post-verdict juror contact is often left
to the discretion of the trial court.
See Benjamin M. Lawsky, Limitations on Attorney
Postverdict Contact with Jurors: Protecting the Criminal Jury and its Verdict at the Expense of
the Defendant, 94 Colum. L. Rev. 1950, 1951 (1994). See also Haeberle, 739 F.2d at 1021
(“Federal courts have generally disfavored post-verdict interviewing of jurors.”). Although it is
a long-accepted precept that attorneys actively participating in a case, as officers of the court,
must necessarily have their First Amendment rights restricted in ways that the general public
does not, these rights are still afforded some degree of protection. See Gentile, 501 U.S. at
Courts determining the constitutionality of local rules and orders that restrict or prohibit
post-verdict contact with jurors have attempted to balance attorneys’ First Amendment rights and
appellant/defendants’ due process rights against the broader systemic public policy of ensuring
fair trials and competent veniremen. In Benton, the Supreme Court of Texas noted that “it is
well established in the law that post-verdict speech can also pose a sufficiently significant threat
to the fairness of jury trials to justify curtailing the would-be speakers’ constitutional interests.”
980 S.W.2d at 432. The restriction that such rules impose upon attorneys’ free speech is
minimal and the public policy in favor of such restrictions is paramount. See, e.g., Gagliano v.
Ford Motor Co., 551 F.Supp 1077, 1079 (D. Kan. 1982) (noting that the local rule forbidding
post-verdict juror contact absent Court approval was merely “a general regulation of plaintiff’s
counsel’s speech in a very narrow and limited context. It incidentally limits counsel’s speech,
but is supported by a valid governmental interest, namely the interest in the orderly conduct of
civil trials and the finality of verdicts, and is clearly outweighed by that interest.”).
In Haeberle, a civil case, Haeberle appealed the district court’s denial of his request for
post-verdict contact with the jury, arguing that he wished to question the jury, not for purposes of
impeachment, but merely to determine the basis upon which the verdict had been reached. 739
F.2d at 1020. The applicable local rule provided that:
neither the attorney nor any party to an action nor any other person shall himself
or through any investigator or other person acting for him interview, examine or
question any juror, relative, friend or associate thereof either during the pendency
of the trial or with respect to the deliberation or verdict of the jury in any action,
except on leave of Court granted upon good cause shown.
Id. at 1020–21. The Fifth Circuit Court of Appeals noted that important public policy reasons
support such a rule, for example: protecting the jury from post-verdict charges of misconduct;
increasing the certainty of verdicts; and preserving court resources for what would be timeconsuming and often futile proceedings. Id. at 1021. The Court noted that it had previously held
that leave to interview jurors would only be granted where specific evidence of misconduct was
demonstrated by either testimony or affidavit. Id. at 1021. See also King v. United States, 576
F.2d 432, 438 (2nd Cir. 1978), cert denied, 439 U.S. 850 (1978); United States v. Franks, 511
F.2d 25, 38 (6th Cir. 1975) (noting that trial judges exercise their discretion in determining
whether to allow post-verdict questioning of the jury). The Haeberle Court noted that the First
Amendment interests of the disgruntled litigant, and that litigant’s counsel, were limited and
outweighed by the jury’s interest in privacy and the public interest in well-administered justice.
739 F.2d at 1022.
In United States v. Kepreos, the First Circuit Court of Appeals was confronted with a
situation wherein a criminal case ended in a mistrial, and an Assistant U.S. Attorney contacted
some of the jurors from the first trial, prior to the retrial, to inquire why the jury had not been
convinced of the defendant’s guilt. 759 F.2d 961, 967 (1st Cir. 1985). At the time no local rule
prevented such contacts, but the Court took the opportunity to find that “henceforth this Circuit
prohibits the post-verdict interview of jurors by counsel, litigants or their agents except under the
supervision of the district court, and then only in such extraordinary situations as are deemed
appropriate.” Id. See also Rakes v. United States, 169 F.2d 739, 745–46 (4th Cir. 1948).
In accordance with the reasoning employed in the above-cited cases, we hold that
attorneys’ limited First Amendment rights implicated by an order prohibiting post-verdict juror
contact absent a court order, are outweighed by the public policy interests in preserving a full
and fair trial, protecting juror privacy and protecting the finality of verdicts. Therefore, we hold
that the district court did not err in using its inherent authority to enter an order prohibiting postverdict juror contacts absent a showing of good cause to believe that juror misconduct occurred.
Where courts determine that juror contact may be appropriate, the preferable method of
initiating such contact would be for the court to instruct parties seeking post-verdict contact with
jurors to draft a letter to be sent to those jurors. These letters should stress that jurors have
complete discretion to decline any contacts, or to terminate any agreed-upon contact once
initiated. These letters should also include a statement that jurors should contact the court to
report any contacts which occur despite the juror’s decision to decline or terminate the same.
Trial courts have the inherent authority to review such letters and enclosures and order counsel to
make modifications accordingly.
C. The district court did not abused its discretion in denying Hall’s motion for post-verdict
The district court did not absolutely proscribe contact with the jurors, but rather ordered
that Hall make a motion and receive express permission from the court prior to making any
contact. After receiving Hall’s motion and accompanying memorandum in support, as well as
the State’s objection to that motion, the district court held a hearing examining Hall’s proposed
specific and general inquiries point-by-point. The district court noted that, in considering the
motion, it was only considering allowing contact on topics for which juror testimony (or
affidavits) would be admissible under I.R.E. 606(b), specifically stating:
My sense of Rule 606(b) is that it’s not just an admissibility rule, because
there would be no reason to contact a juror unless counsel hoped to find
something that was admissible that would then come into court and would be
governed by Rule 606.
So to try to parse out and distinguish Rule 606 as an admissibility [sic] in
Court in a post-conviction proceeding versus a contact with former jurors rule is, I
think, ignoring the obvious, because the whole reason for contacting a former
juror is to, from petitioner’s point of view, apparently not having any evidence
now that—or even indication of any strong likelihood now that the Court’s
instructions were not followed or that there was somehow juror misconduct, to get
some information somewhere along the line in the total absence of any indication
that maybe something untoward happened.
So there’s no reason to contact them unless you hope to admit it and to
bring it forward to the Court. So to argue that 606 is only an admissibility rule
and not a contact rule, I think ignores the whole purpose of the proceeding.
The district court concluded that Hall had failed to provide any evidence suggesting that
any impropriety had occurred, for which testimony would have been permitted under I.R.E.
606(b), and denied the motion accordingly.
Similar public policy concerns were behind the creation of F.R.E. 606(b) and I.R.E.
606(b). In Tanner v. United States, the United States Supreme Court noted “common fairness
requires that absolute privacy be preserved for jurors to engage in the full and free debate
necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their
deliberations are to be scrutinized in post-trial litigation.” 483 U.S. 107, 124–25 (1987) (quoting
U.S. Code & Admin. News 1974, p. 7060 (discussing rationale behind F.R.E. 606)). Pursuant to
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon the juror’s or any other juror’s
mind or emotions as influencing the juror to assent to or dissent from the verdict
or indictment or concerning the juror’s mental processes in connection therewith,
nor may a juror’s affidavit or evidence of any statement by the juror concerning a
matter about which the juror would be precluded from testifying be received for
these purposes, but a juror may testify on the questions whether extraneous
prejudicial information was improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon any juror and may be
questioned about or may execute an affidavit on the issue of whether or not the
jury determined any issue by resort to chance.
See also Levinger v. Mercy Med. Ctr., Nampa, 139 Idaho 192, 197, 75 P.3d 1202, 1207 (2003)
(holding that I.R.E. 606(b) does not prohibit juror affidavits revealing dishonesty during voir
“That rule, however, does not have application to information brought forth which
challenges other conduct of jurors during the trial, apart from their deliberations.” Levinger, 139
Idaho at 197, 75 P.3d at 1207.
In Tanner, Tanner and Conover were tried as co-defendants and convicted of mail fraud;
prior to sentencing, Tanner filed a motion seeking, in relevant part, permission to interview the
jurors. 483 U.S. at 112–13. Tanner’s attorney submitted an affidavit in support of that motion,
stating that he had received an unsolicited phone call from one of the jurors, wherein the juror
informed the attorney that several jurors had consumed alcohol at lunch during the course of the
trial, and consequently fallen asleep during afternoon court sessions. Id. at 113. The district
court found that the juror testimony on that point was inadmissible under F.R.E. 606(b), and that
the remaining evidence did not demonstrate good cause that the jury should be interviewed. Id.
at 115. Despite the court’s order denying juror contact, a second juror visited Tanner’s attorney
in his office and was later interviewed by two private investigators. Id. The second juror stated
that multiple jurors drank excessively during the course of the trial and ingested marijuana and
cocaine. Id. at 115–16. On appeal, Tanner asserted that the district court had erred in not
ordering an additional evidentiary hearing for the purposes of gathering juror testimony as to the
use of drugs and alcohol by the jury during the trial. Id. at 116.
Tanner argued that regardless of F.R.E. 606(b)’s constraints on juror testimony, his Sixth
Amendment guarantee to a fair trial before an impartial and competent jury required the district
court to hold an evidentiary hearing. Id. at 126. The United States Supreme Court first noted
that there are long-recognized and substantial concerns supporting the protection of jury
deliberations from post-verdict examination. Id. at 127. The Court next articulated multiple
aspects of the trial process that protect a defendant’s Sixth Amendment interests, apart from
post-verdict juror interviews, including: (1) voir dire; (2) the fact that the jury is observable
during the course of the trial by the court, counsel and court personnel; (3) juror observations of
each other—jurors may report inappropriate behavior to the judge prior to a verdict being
entered; and (4) the availability to the defendant of the opportunity to impeach a verdict by nonjuror evidence of misconduct. Id. On the basis of these alternative mechanisms that exist to
ensure an impartial and competent jury, and the lack of non-juror evidence supporting Tanner’s
motion for post-verdict questioning of the jurors, the Court affirmed the district court’s denial.
As noted above, courts have consistently upheld orders and rules restricting attorneys
from post-verdict contact with jurors absent a showing of good cause, despite the limited
attorney First Amendment interests at stake. However, where there is a showing of good cause,
suggesting that juror misconduct occurred, questioning the jury may lead to admissible evidence
even where the jurors themselves may not testify.
Determinations of whether or not to allow discovery pursuant to proceedings for postconviction relief is entrusted to the sound discretion of the trial court, absent a showing that the
failure to allow such discovery shall result in prejudice to an appellant’s substantial rights.
Baldwin, 145 Idaho at 157, 177 P.3d at 371. As noted above, in determining whether a district
court has abused its discretion this Court will consider whether “(1) the court correctly perceived
the issue as one of discretion; (2) the court acted within the boundaries of such discretion and
consistently with legal standards applicable to specific choices; and (3) the court reached its
decision by an exercise of reason.” Henderson, 148 Idaho at 639–40, 227 P.3d at 569–70
It is clear from the record that the district court recognized the issue of post-verdict juror
contact as one of discretion. The exhaustive analysis the district court gave to each point of
inquiry proposed by Hall in the memorandum accompanying his motion, clearly demonstrates
that the district court reached its decision through an exercise of reason. The court found that no
evidence had been submitted to suggest that: (1) extraneous prejudicial information was
improperly brought to the jury’s attention; (2) an outside influence was improperly brought to
bear upon any juror; or (3) the jury determined any issue by resort to chance. Thus finding no
evidence to suggest that juror contacts would lead to admissible testimony or affidavits under
I.R.E. 606(b), the district court denied Hall’s motion.
The goal in limiting contact with the jury is not to unduly restrict the discovery of
evidence suggesting juror misconduct, but rather to protect jurors from unwanted contact and
potential harassment. A court must, therefore, balance its legitimate goal of juror protection with
the court’s primary duty of ensuring that justice is done and that defendants receive fair trials. In
stating that it was limiting its consideration of Hall’s proposed post-verdict contact with the
jurors to those matters for which juror testimony would be admissible under I.R.E. 606(b), the
district court erred. The appropriate test is whether Hall had shown that there was good cause to
believe that juror misconduct had occurred. If such a showing was made the court should have
permitted juror contact, limited to the subject of such misconduct, irrespective of whether that
contact would lead to admissible juror testimony. Such juror contact would be for the limited
purpose of discovery of admissible evidence relating to juror misconduct. Such evidence could
take the form of juror testimony permitted under I.R.E. 606(b), or extrinsic evidence.
district court had solely relied upon its erroneous finding that I.R.E. 606(b) limited the scope of
any post-verdict juror interviews to those topics for which the jurors themselves could testify, it
would have abused its discretion. However, the court provided alternate grounds upon which it
denied each area of requested inquiry, consistent with the appropriate test.
Although the district court erred in finding that I.R.E. 606(b) restricted the permissible
scope of post-conviction juror interviews to those topics on which jurors themselves might
testify, it was correct in finding that lines of inquiry related to the jurors’ deliberations, mental
processes, minds or emotions were improper. Idaho Rule of Evidence 606(b) expressly prohibits
jurors from testifying as to these topics, and also bars any other party from offering evidence of
any statement by a juror concerning these topics. As juror statements are the only way to
ascertain what took place in the deliberative process or in the minds of the jury, the effect of this
rule is to make lines of inquiry pertaining to these areas inherently fruitless. Where such
questioning could never lead to admissible evidence there is necessarily no showing of good
cause to interview the jurors on these topics. Thus, we find that the district court properly barred
areas of inquiry relating to the jurors’ deliberations, mental processes, minds or emotions, on the
basis that I.R.E. 606(b) would bar any discovered evidence.
In Hall’s Memorandum in Support of Motion for Juror Contact, he identified the areas
that he intended to question the jurors about, divided into “General Inquiries” and “Inquiries
Specific to Certain Jurors.” Most of the areas of specific inquiry pertained to information that
should have been obtained at voir dire, and Hall has made no allegation that the jurors were
untruthful when answering questions during that process. Rather, Hall is seeking a second
chance to investigate areas that he believes trial counsel failed to properly explore. Absent some
reason to believe that the jurors were untruthful in voir dire, the district court found that Hall was
seeking to engage in a “fishing expedition” with nothing to suggest that anything improper
occurred. Although the district court did not employ the terminology “good cause” in reaching
its decision, it is clear that the district court found that Hall had not demonstrated good cause to
inquire into these areas.
Reading the transcript of the hearing on post-verdict juror contacts, it is clear that the
district court provided alternate bases for rejecting most of the proposed inquires that Hall
wished to make, relying on I.R.E. 606(b) only where it was appropriate to do so under a proper
reading of that rule. The transcript shows that, although employing different terminology, the
district court found that Hall had failed to show good cause for any of the proposed questioning.
The court specifically noted that it found “that the claims made by the petitioner relating to
possible jury misconduct are made without factual support. The petitioner makes no effort to
support his claims with any objective or observable conduct.” The thorough and specific
analysis the district court applies to the majority of both the general inquiries and specific
inquiries proposed by Hall reveals that the district court properly considered whether Hall had
made a showing of good cause.
For example, one of the areas of general inquiry that Hall proposed to interview the jurors
about was their “awareness of Mr. Hall’s shackles”. The district court noted that Hall was not
wearing shackles at trial, rather he was wearing a leg brace under his clothing that would lock
when he stood up, requiring that he push a button in order to be able to bend his legs and sit back
down. The court stated that since Hall never stood up during the course of the trial there was no
opportunity for the jurors to notice such a restraint.
Similarly, as for Hall’s general inquiry into “Juror bias regarding Mr. Hall’s
dangerousness”, the district court found that the only support argued for this ground arose from a
factually incorrect premise. One day at trial Mr. Hall’s counsel was fiddling with a large
paperclip. Hall alleges that one of the jurors sent the judge a note to ask the defense to dispose
of the “sharp object”, and that such contact suggests that the juror may have thought Hall was
dangerous and did not want a sharp object in his vicinity. However, the court noted that what
had actually occurred was that a juror verbally mentioned to the bailiff that counsel’s
manipulations of the paperclip were distracting, and then the bailiff wrote a note to this effect to
Having found that no good cause existed to allow Hall to question the jurors, the district
court did not abuse its discretion in denying such contacts.
D. The district court did not abuse its discretion in denying Hall’s motion to depose his
trial counsel’s investigator.
The district court, in its discretion, permitted Hall to depose the two attorneys who had
represented him at trial, while denying leave to depose the investigator employed by those
attorneys, Glenn Elam. Hall argues that this denial constituted an abuse of discretion as he had
demonstrated that the deposition was necessary in order to protect his substantial rights. Hall
alternatively argues that the court abused its discretion by misapplying relevant facts and law.
It is clear that the district court recognized that its determination of whether or not to
order the deposition of Elam, as a part of post-conviction discovery, was a matter of discretion.
It is likewise clear from the record both in the hearing transcripts and order that the district court
reached its decision through an exercise of reason. The sole remaining question is whether the
district court acted within the outer bounds of its discretion, or in other words, whether Hall’s
requested discovery was necessary in order to protect his substantial rights.
The post-conviction claim Hall was seeking to support was a Strickland 2 claim of
ineffective assistance of counsel, based upon a failure to fully investigate and present evidence
on a theory of an alternate perpetrator. The Court authorized the deposition of both of the
attorneys who had represented Hall at trial, in order to obtain information relevant to that claim.
It is also evident from the record that Elam fully participated with Hall’s appellate counsel’s
investigation, talking on numerous occasions with their investigator. Hall’s sole ground for
seeking to depose Elam appears to be that Elam would not sign an affidavit that had been
prepared for him by Hall’s counsel.
As a claim of ineffective assistance of counsel for failure to properly investigate and
submit evidence on a theory of an alternate perpetrator may best be made by demonstrating what
investigation trial counsel authorized, what the result of that investigation was, and how that
information was used, the deposition of trial counsel was the most direct and material evidence
to that claim. As the district court noted, Elam was “not a decision-maker on what evidence was
introduced, or known or not known, known about and not introduced.” Further, the record
shows that Elam cooperated fully with Hall’s attorneys’ investigation into this issue, and the trial
court recognized that an affidavit prepared by the appellate investigator might be an alternative
means of submitting evidence on the issue. Due to the discovery that was granted and the
alternative means Hall had available to gather and submit evidence on the relevant postconviction claim, we find that the district court’s denial of the requested deposition did not
prejudice Hall’s substantial rights and was within the outer bounds of the district court’s
Hall also argues that heightened procedural safeguards should be employed at discovery
in capital cases, but he cites to no Idaho authority supporting that proposition, instead citing to
law pertaining to discovery during federal habeas corpus actions.
See Payne v. Bell, 89
F.Supp.2d 967 (W.D. Tenn. 2000). This Court has previously applied standard post-conviction
discovery standards in capital proceedings. See Fields v. State, 135 Idaho 286, 291, 17 P.3d 230,
235 (2000). See also State v. Porter, 130 Idaho 772, 782, 948 P.2d 127, 137 (1997) (expressly
declining to adopt ABA Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases (2003)). Hall has presented nothing that persuades this Court that post-conviction
discovery standards should be different for capital cases.
Strickland v. Washington, 466 U.S. 668 (1984).
We hold that the district court had the inherent authority to enter an order barring contact
with the jurors absent prior court approval. The district court’s order did not violate Hall’s
attorneys’ First Amendment rights. The district court did not abuse its discretion in denying
Hall’s request to contact jurors, as Hall failed to demonstrate good cause to believe that those
contacts would lead to admissible evidence of juror misconduct. Nor did the district court abuse
its discretion in denying Hall’s request to depose his trial counsel’s investigator, as that denial
was a proper exercise of discretion and did not prejudice his substantial rights. We affirm the
district court’s decision on all issues.
Chief Justice EISMANN and Justices J. JONES, W. JONES and HORTON, CONCUR.