of some type of coercion brought on by the inadequate accommodations the jurors had during their overnight sequestration. Defendant Tabella alleged that since "the jurors were made to sleep ten in one room overnight", such an atmosphere was not conducive to a fair and impartial trial.
The William Penn Hotel is one of Pittsburgh's leading hotels where, to my knowledge, many juries have been sequestered overnight during the past 20 years. Five juries have spent the night in that hotel so far this year. I have not heard of any prior complaints about the accommodations. Even if the "cots" were not entirely to Tisak's liking, I find that the accommodations were adequate. (See: Exhibits 2, 3.)
Obviously, there is nothing in Tisak's written statement which would warrant impeachment of the verdicts. He does not assert that he was "coerced" into rendering the guilty verdicts. His predominant concerns were the performance of the oil heater at his home and the prospect of spending another night on a "cot" in a room with eight other exasperated male jurors. But because there was innuendo of threats of bodily harm, with considerable reluctance, I granted the request for a hearing to determine if there were genuine attempt to inflict bodily harm upon Tisak, or threats which actually put him in fear of bodily harm. Cf. United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958).
All counsel were notified; four defense attorneys attended the hearing as well as the Assistant United States Attorney, who prosecuted the case.
Several defendants were present. Juror, Steve Tisak, was present and was examined by me at some length. Counsel for the government and counsel for the defendants who were present were not permitted to cross-examine Tisak. United States v. Grieco, supra, pp. 414-415. However, all counsel who were present were given the opportunity to suggest additional questions that they desired me to put to Tisak. No specific question was suggested.
Three of the jury attendants, a Marshal, Mr. Ray Eschman, my law clerk, Mr. James West, and the court-crier in attendance, Mr. William Ellis,
were also questioned by me. Counsel for the defendants were given the opportunity to examine these witnesses. Counsel for the defendants questioned Mr. Ellis; no questions were asked of either Mr. West or Mr. Eschman.
From the testimony taken, I find the following facts:
Steve Tisak was seated as juror No. 10 and served the entire duration of the trial. Tisak wrote and sent three communications to me; one during the course of the trial and two on February 14th, while the jury was deliberating. Tisak is not a frail man; he is 5' 8" in height, weighs 150 pounds, and is a truck driver and construction worker. From his appearance and demeanor, he did not appear to be a "weak sister" or a "shrinking violet" who would easily be intimidated by threats. On the contrary, he seemed to be endowed with the characteristics of an individualist and a worthy opponent for his 11 peers in the advocacy of his positions. His will was not overborne by threats of violence; to the contrary, his mind was changed in the heat of deliberations and shortly after my response to his last written question.
I gathered from his testimony that he was greatly concerned about being sequestered because of a problem that he was having with an oil heater in his home. He testified that he was not allowed to make a call to have someone check his heater. Pursuant to Tisak's written instructions (Exhibit 1), Mr. West made a call to Andrew Yanchik at 8:30 p.m. on February 13th to inform him that Tisak would be detained overnight. Tisak testified that he had previously arranged with Mr. Yanchik to feed his dogs if he was detained over-night. Tisak recalled writing the message and giving it to Mr. West, but erroneously thought it took place at 5:30 in the afternoon. Late that evening at the hotel, Tisak requested Mr. Ellis to make another call concerning his car which he had parked in Aliquippa that morning, but this request was refused because Ellis felt he could not leave the jurors unattended to make the call, and Tisak did not seem to be overly concerned. No mention was made of the oil heater to either West or Ellis.
Tisak also testified that at the conclusion of the charge, he remembered that I inquired whether any juror was unable to stay overnight if such became necessary. In response to that inquiry, Mrs. Csurilla, a juror, stated she could not stay overnight because she had two children at home with no one to care for them, and she was excused, but Mr. Tisak did not mention that the oil heater constituted a danger to his home.
In his statement Tisak described the threats as follows:
"* * * Other jurors said they did not intend to sleep on them cots again. One [juror] stated if he has to sleep there again he will be in Federal Court in the morning for murder. Through the day two jurors acted in such a manner that I thought they would pick up a chair and break it on my head because I would not vote blank [sic] guilty charges. Now, I finally voted guilty on a [sic] gambling charges because it was admitted in Court that gambling was performed. * * * I signed guilty on that blank [sic] charges because I myself did not want to sleep at the hotel with those people because I did not think I would have walked out of that place the next day after sleeping on those cots. * * * [One] juror stated Wednesday, 'I do not get mad, I just get even.'"
Tisak testified that the alleged threats occurred on Wednesday, February 14th, in the jury room, but Mr. Ellis and the Marshal in attendance stated that Tisak did not inform them at any time about any threats that were being made against him.
At the hearing Tisak testified that one juror acted very nervous and grabbed the back of his chair, and one juror stood up flexing his muscles. But he also testified that no one picked up a chair and attempted to strike him over the head with it. He admitted that no one so much as touched him or attempted to touch him. In connection with Tisak's written statements concerning a juror being in federal court for murder if he had to stay another night, and a juror stating, "I do not get mad, I just get even", he admitted that these assertions were not accompanied by any act or threats of physical violence directed at his person.
Tisak also testified that several jurors were hollering at him and called him, among other things, "an opinionated ass". He related that several of the jurors told him that if they had to stay another night, they would go bankrupt.
From the testimony of Tisak, it seems obvious that on Wednesday all the jurors favored acquittal of the defendants of Count 1, and 11 jurors favored conviction of the defendants of Count 2. Tisak was the holdout. He testified that he had problems with the effect of the terms "wilfully and knowingly". This problem was a subject of the two communications he sent to the court on Wednesday, February 14th, prior to the return of the verdicts by the jury. Tisak knew that he could communicate with the court by writing a message and handing it to the bailiff. This he had done once during the trial and twice during the deliberations. His assertion that he did not know how to communicate the alleged threats is not convincing.
He stated during the hearing that with the problem of his heater troubling him, he thought he might as well give in, sign the verdict slips and go home. In response to my question: "Why didn't you write a note to me and tell me that jurors were threatening you and give it to the bailiff?", Tisak replied: "Sir, about that time all I wanted to do was get out of here and see if my place burnt [sic] down or if I was out /--. All I wanted to do is get out of the place and forget everything."
It was only after he reconsidered over the weekend that he decided to impeach his verdicts and returned on February 19th to the Courthouse, which was closed because it was a holiday, and eventually made his way to Attorney Ashton's office.
When the jury announced it had arrived at verdicts, and after the verdicts had been announced in open court, the clerk polled the jury and Tisak replied affirmatively that the verdicts as read were his verdicts. He did not complain of threats or fear then in open court or to any other person until five days later.
Assuming that the testimony of Tisak is credible, I conclude that the statements and actions of some of the jurors amounted only to heated expressions of annoyance with Tisak during the second day of deliberations; that the threats were empty ones, expressive of impatience, exasperation and frustration, and did not actually cause Tisak to fear bodily harm, or forcibly compel him to change his vote. The expressions used by some jurors, combined with Tisak's urgent desire to go home because of the erratic heater and the hotel "cot", are not sufficient grounds to impeach the verdicts. Whether or not those expressions and his concern about the heater and the "cot" were effective to induce Tisak to join in the verdicts are not subjects for investigation. Jurors are allowed to testify only as to the nature of outside influences, but not as to the subjective effect of the intrusions upon their mental processes. Mattox v. United States, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892); Jones, Evidence, Vol. 3, § 20:58, p. 732 (6th ed.).
Based on the evidence, it is my opinion that the motion for mistrial and the motions for a new trial on the grounds of coercion and inadequate hotel accommodations should be denied.
It is generally held that jurors may not impeach their verdict by testimony that it resulted from coercion or majority vote. See: 8 Moore's Federal Practice para. 31.08, pp. 31-55, 31-56; 6A Moore's Federal Practice para. 59.08 , p. 3796; Jones, Evidence, Vol. 3, § 20:58, p. 727 (6th ed.); 8 Wigmore, Evidence, §§ 2345-2356 (1961); Wright, Federal Practice and Procedure § 554, pp. 493-494.
The Proposed Rules of Evidence for United States District Courts and Magistrates, Rule 606(b), provides as follows:
"(b) Inquiry into validity of verdict or indictment. 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question 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. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received." (Emphasis supplied.)