State court decision was contrary to clearly established federal law because the court did not investigate the prejudicial effect of a police tail on a known holdout juror. Defendant was convicted in Nevada of robbery, attempted murder, gun use, and other offenses based upon his participation with others in a robbery and shoot-out in a bar. There were a number of off duty police officers in the bar at the time of the robbery who became victims and witnesses. While the jury was deliberating in defendant’s case, the foreperson sent a note to the court complaining that a lone holdout juror was not participating in the deliberative process. The court ordered deliberations to continue. The next day, as the holdout juror was driving to court, he noticed he was being closely followed by a police car. The holdout juror thereafter voted to convict. Defendant’s motion for new trial based on juror misconduct was denied. The Nevada Supreme Court affirmed, finding no evidence of improper contact between the juror and police; it did not consider possible prejudice. Defendant sought federal relief. He appealed the district court’s dismissal of his petition. Held: Reversed. Well established U.S. Supreme Court authority forbids any external contacts with jurors that might disturb the jury’s exercise of deliberate and unbiased judgment (Mattox v. U.S. (1892) 146 U.S. 140). Any such contact creates a presumption that the contact prejudiced the jury’s verdict. Once a defendant shows an external occurrence having a tendency toward prejudice, federal law requires a trial court to investigate whether the occurrence was prejudicial. The government may overcome the presumption of prejudice by showing that the contact was harmless. Here, the state court erred by failing to investigate the possible prejudice of the contact.

On remand, the district court should admit the juror’s statements about how the police tail impacted him. Because the Nevada Supreme Court failed to consider the prejudicial impact of the police contact with the holdout juror, the federal court may consider the issue de novo, “unencumbered by the deference AEDPA normally requires.” The anti-impeachment rule (Fed. Rule of Evid., rule 606(b)(1)) prohibits juror testimony regarding a juror’s mental processes concerning the verdict. There is an exception to the rule that permits juror testimony about whether an outside influence was improperly brought to bear upon the juror and the impact of this influence. Thus, on remand the district court should admit the juror’s statements about how the police tail impacted him, although it may not admit evidence about how it affected his deliberations and verdict.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/03/13-17071.pdf