El Chapo Denied a Motion for Retrial

UPDATE July 3rd: Judge Brian M. Cogan has denied Joaquín Guzmán’s motion for an evidentiary hearing and a retrial, which his legal team requested based on allegations of juror misconduct. He will face sentencing later this month. 

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Defense attorneys for convicted drug lord Joaquín “El Chapo” Guzmán have filed a motion for a retrial, citing “bombshell disclosures” from a member of the jury who said that jurors routinely read news coverage of the case during the trial.

In a motion filed Tuesday morning in the Eastern District of New York, Guzmán’s lawyers requested an evidentiary hearing to investigate jury misconduct, citing an exclusive interview by Vice News in which a juror admitted that at least five jurors routinely violated their oath by seeking outside information about the trial and discussing the case amongst themselves.

“In a case generating publicity the Court called ‘unparalleled,’ a juror contacted a reporter a day after the verdict to volunteer that panel members had violated their oath and scorned the Court’s incessant instructions by actively following and discussing the blizzard of media coverage, and falsely denying it upon judicial inquiry, throughout the three-month trial,” the lawyers wrote.

In the interview, published eight days after the jury convicted Guzmán — a longtime leader of the powerful Sinaloa Cartel, on 10 drug-trafficking, money-laundering, and weapons charges — the anonymous juror told Vice News that they and other members of the jury had routinely read news coverage and checked the Twitter accounts of journalists covering the trial, despite repeated admonitions from Judge Brian M. Cogan to ignore any outside information.

“You know how we were told we can’t look at the media during the trial?” the juror said, according to Vice News. “Well, we did. Jurors did.”

Reading the news exposed the jurors to explosive information about Guzmán that Cogan had carefully prevented from being presented at trial, including an accusation that El Chapo had drugged and raped underage girls. That accusation, which came from Colombian drug trafficker Alex Cifuentes, was contained in a flurry of court documents that were unsealed on February 2nd, the day after the jury began deliberating. Prosecutors had successfully lobbied Cogan to prevent it from coming out during the defense team’s cross examination of Cifuentes, arguing that it was irrelevant to the case and would unfairly prejudice the jury against defendant and witness alike.

But according to the juror, whose name, age and gender were kept private by Vice News, several members of the jury read stories about the unsealed accusations in the news, and then lied to the judge when asked about it. The juror told Vice News reporter Keegan Hamilton that they had decided to lie after reading Hamilton’s tweets on an Apple Watch that one of them had smuggled into the courthouse.

“I had told them if you saw what happened in the news, just make sure that the judge is coming in and he’s gonna ask us, so keep a straight face,” the juror said, according to Vice News. “So he did indeed come to our room and ask us if we knew, and we all denied it, obviously.”

In the motion filed Tuesday, El Chapo’s lawyers argued that the juror’s admission, if true, violated Guzmán’s Fifth Amendment right to confront his accuser and Sixth Amendment right to an impartial decision based solely on evidence presented at trial.

“If a justice system’s measure is how it treats the most reviled and unpopular, then ours may have failed Joaquin Guzman by denying him the fair trial before an untainted jury to which he’s constitutionally entitled,” the lawyers wrote. “Because sunlight is the best disinfectant, that prospect merits serious consideration, close investigation and a new trial as appropriate.”

In a text to Rolling Stone, defense attorney Jeffrey Lichtman accused the jurors of committing “crimes,” and said the allegations by the anonymous juror denied his client a fair trial.

“This is not a situation where 1-2 jurors were mistakenly exposed to the most horrific press coverage about a defendant and owned up to it, promising not to let it influence their verdict,” Lichtman says. “This instead is a case where multiple jurors sought out the most prejudicial press coverage, filled with allegations which never made it into the trial as well as misinterpretations of evidence — and then plotted to lie about it to the judge. These are crimes. Joaquin Guzman deserved a fair trial and he didn’t get one with this jury.”

In order for the retrial motion to proceed, the court would likely have to call all 12 jurors and six alternate jurors back to court for interviews, as the evidence of juror misconduct is currently based on hearsay, according to Paul Shechtman, a lecturer at Columbia Law School who previously worked as the chief of the criminal division of the Southern District of New York.

“You don’t have an affidavit from the juror, and you don’t have an affidavit from the Vice reporter, and I take it he would never testify,” Shechtman says. “You have to persuade the judge that you have enough for a hearing, and then you have to get a juror on the witness stand saying it happened.”

If that were to happen, and the court discovered that jurors had in fact violated their oaths and received extraneous information and lied to Cogan about it, the defense team would face the burden of proof of showing that this misconduct, however serious, affected the final outcome of the verdict, Shechtman says.

“It’s a troubling allegation, but this was a long trial, with lots of cooperators, and no prosecutor or judge is going to want to have to reassemble it,” he tells Rolling Stone. “The defendant has a heavy burden of proof.”

Guzmán, who remains in solitary confinement at a high-security federal lockup in Manhattan, was found guilty on all counts on February 12th after a three-month trial with testimony from 56 witnesses, including 14 cooperating witnesses who testified against the former drug lord.

Sentencing has been set for June 25th, and he faces life in prison if the conviction is upheld. Shortly after the defense team file its motion, the prosecution requested a deadline of April 29 to file a response, which Cogan granted, records show. A spokesman for the United States Attorney’s Office for the Eastern District of New York declined to comment in an email.

This is a developing story. 

Read the full motion below: