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A juror says the conduct of U.S. District Judge David Nuffer was "at times downright embarrassingly nasty" toward the defendants and an attorney during the trial of entrepreneur Jeremy Johnson. Another says she was "very disturbed by what I witnessed" during the trial earlier this year.
Affidavits from the two jurors and a sealed affidavit from a third juror were part of Johnson's attorneys' motion asking that the comments be taken into account when Nuffer rules on motions for a new trial and as factors in sentencing.
The jury sat through a two-month trial and, after six days of deliberations, found Johnson guilty in March of eight charges of providing false information to a bank. But the panel also acquitted him on 78 charges related to allegations of bank fraud, a statistically remarkable outcome for a defendant who acted as his own attorney.
Nuffer during the trial was at times openly hostile to the two defendants who represented themselves, and especially to defense attorney Marcus Mumford, who clashed with the judge numerous times. Nuffer summoned security officers to the front of the court several times during the trial after Mumford tried to argue a point; one day, Nuffer called several timeouts to keep the courtroom silent for a minute.
Under federal rules of evidence, a juror is not allowed to testify about things that occur during deliberations, on the effect of anything concerning a juror's vote or on the mental processes that led to a verdict.
But Johnson's attorneys, Karra Porter and Mary Corporon, who started representing Johnson after the verdict, argue that juror statements can be used in this case because Johnson is arguing that his constitutional rights to a fair trial were violated. Such statements also can be used to show "extraneous prejudicial information" or an improper "outside influence" on the jury and as part of an inquiry into an "ambiguous or inconsistent verdict," the attorneys wrote in their motion.
Prosecutors asked Nuffer to strike Johnson's motion within hours of its filing.
The motion violates a court's order that prohibits more filing in support of Johnson's motion for a new trial or acquittal, they argued.
Johnson's motion "is legally frivolous," Assistant U.S. Attorney Jason Burt argues, "and it seeks to admit affidavits from jurors in Johnson's trial that appear to violate" Nuffer's order forbidding direct contact with jurors unless approved by the court.
"Neither Johnson nor his counsel get to ignore court orders simply because he is Jeremy Johnson and whatever filings he makes are sure to draw press attention," Burt wrote.
The filing violates rules of evidence and is not supported by prior court decisions, he said.
In her affidavit, the juror identified as No. 9, and identified in media accounts as Kathie Cox, said she found Nuffer's tone toward the prosecutors from the U.S. attorney's office was "level, calm and with professionalism."
In contrast, Cox saw Nuffer's treatment of the defense "in a manner that was brusque, short on patience and at times downright embarrassingly nasty."
Juror No. 6, Shelly Riley, said she had served as a courtroom observer for the Utah Judicial Performance Evaluation Commission and was trained to observe and evaluate judges.
Riley labeled as "very disturbing" Nuffer's treatment of Johnson, codefendant Ryan Riddle and Mumford, who represented the third defendant, Scott Leavitt.
"Based on what I observed during the trial in my role as a juror, I reached the unavoidable conclusion that Judge Nuffer was very openly biased in favor of the prosecution and against the defense," Riley said in an affidavit.
She also cited comments by Nuffer during the trial that she said "were misconstruing evidence that the defense was presenting."
"I was offended how he treated Mr. Mumford in particular like a child," Riley said, "making a show of having to call the court security officers a number of times when Mr. Mumford was speaking, as if he was saying something so offensive that it was contrary to the law."
The defense, Cox said, was "handcuffed by the judge, and he wouldn't let important evidence in."
During the trial, Nuffer also made sure the record was complete a number of times "for the appeal," Cox said. That troubled her because "it seemed to the jury that the judge was assuming the defendants would and should be found guilty."
Nuffer's comments on an appeal, Riley said, leaked into deliberations when the jury got stuck on an issue and some jurors tried to resolve differences by saying that the defendants could "just appeal it."
The judge's remarks about appeal, Porter and Corporon argue, caused the jury to "reach its verdict, not based upon the evidence or the law, but rather upon the court's comments."
Riddle also was convicted of the eight counts. He and Johnson are scheduled to be sentenced July 29.
Leavitt was acquitted of all charges.
The allegations stemmed from Johnson's operation through 2010 of an online marketing company called I Works that sold goods or services, such as details on how to obtain government grants for personal expenses.