NEW YORK – Lawyers for Joaquín “El Chapo” Guzmán will seek a new trial after a report that jurors in his initial trial were following media coverage of the proceeding.
Guzmán attorney Eduardo Balarezo cited a Vice News report in which a juror said other members of the panel violated the repeated instructions of U.S. District Judge Brian Cogan by following news accounts of the trial on Twitter and other media outlets.
For Guzmán, who gained international notoriety for twice breaking out of high-security prisons in Mexico, the effort raises the possibility of at least a temporary escape from punishment in the United States.
The longtime leader of Mexico’s Sinaloa drug cartel was convicted in Brooklyn federal court last week of drug trafficking, weapons violations and operating a continuing criminal enterprise. The last charge could send Guzmán to prison for life.
“Mr. Guzmán intends to file a motion for a new trial based on the disclosures in the article and to request an evidentiary hearing to determine the extent of the misconduct,” Balarezo wrote to Cogan on Friday.
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The defense team asked for more time to file a motion for a new trial. Under federal procedures, a defendant has 14 days from a conviction to file such a motion.
That put the deadline at Tuesday, Feb. 26. Cogan on Friday evening approved an extension to March 28.
The defense team said it asked federal prosecutors to consent to the extension but did not receive an answer before filing the letter to Cogan. The U.S. Attorney’s Office for the Eastern District of New York declined to comment.
The jury of eight women and four men in the initial trial served anonymously amid tight security. They were brought to and from the Brooklyn federal courthouse each day by federal marshals.
The panel listened for nearly three months as prosecutors presented evidence that Guzmán reaped hundreds of millions of dollars in profits by smuggling tons of cocaine and other illegal drugs into the United States over decades.
Prosecutors called 56 witnesses, including 14 former Guzmán associates who provided a detailed inside look at the operations of the Sinaloa cartel and the role Guzmán played as leader.
Witnesses described an operation that smuggled drugs to U.S. cities in cars, trucks, trains, planes, submarines and tunnels under the Mexico-U.S. border. They described Guzmán using a cell phone security system to spy on associates and mistresses, as well as cursing and killing enemies – including one badly injured man that he ordered buried alive.
Guzmán did not testify in his own defense. His legal team called just one witness.
Cogan, mindful of intense national and international media coverage of the trial, ended each day’s session by reminding jurors to avoid all news coverage and refrain from discussing the case with anyone.
The juror who spoke to Vice News described several jurors ignoring the judge’s instructions and lying about it.
One development the jurors allegedly read about during the trial was an allegation by a former associate that Guzmán drugged and forced sex with girls as young as 13.
That evidence – including the claim that Guzmán referred to the girls as his “vitamins” –was not among the charges against him, and was not presented to jurors. It appeared in records that federal prosecutors unsealed and entered in the public docket of the Guzmán case days before the jury began deliberating.
After the media reported on the claims, Cogan questioned jurors in private to determine whether they had read or heard about the allegation, and, if so, whether it had affected their ability to render a fair and impartial verdict.
The judge said the jurors had reassured him there had been no exposure or legal problems.
The juror quoted by Vice News said he or she had read an online account about the child rape allegation, and warned other members of the panel.
“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.”
“So he did indeed come to our room and ask us if we knew, and we all denied it, obviously,” the juror told Vice News. “We did talk about it. Jurors were like, you know, ‘If it was true, it was obviously disgusting, you know, totally wrong. But if it’s not true, whatever, it’s not true.'”
The juror said the panel took six days to deliberate because one member held out, Vice News reported. The juror said some jurors were concerned over the possibility that Guzmán could spend the rest of his life in solitary confinement.
Guzmán’s legal team, beaten during the trial by a mountain of prosecution evidence, seized on the development as a legal lifeline that could give the drug lord a new trial or other resolution.
Balarezo tweeted that the juror’s claims, “if true, make it clear that Joaquín did not get a fair trial.”
If the verdict stands, Guzmán, 61, could spend the rest of his life locked in the Supermax federal prison in Florence, Colorado, the so-called Alcatraz of the Rockies.
High-security inmates there include Unabomber Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, Sept. 11 conspirator Zacarias Moussaoui and Oklahoma City bombing accomplice Terry Nichols, federal Bureau of Prisons online records show.
Easy, instant access to information online has raised questions about jury misconduct and whether judges are able to stop it.
In 2010, Reuters Legal found that judges granted new trials or overturned verdicts in 28 criminal and civil cases for “alleged Internet-related juror misconduct” over the previous two years. Judges found Internet-related problems in roughly 75 percent of cases in which they did not take the drastic step of declaring mistrials.
The New York Times reported in 2009 that nine jurors in a major federal drug trial in Florida acknowledged that they had been doing Internet research about the case, violating legal rules and the trial judge’s instructions. The judge declared a mistrial, wiping out eight costly weeks of legal work by prosecutors and defense lawyers.
When reports of juror misconduct allegations are raised in motions for a new trial or other legal relief, judges typically discuss the issues with attorneys from both sides and decide whether to hold an evidentiary hearing, which can questrions for the jury.
Case law shows that judges typically should determine whether any misconduct violations occurred and whether violations prevented defendants from receiving a fair trial.
In some cases, courts have ruled that evidence presented against the defendants outweighed any legal taint caused by juror misconduct.
Questions about the Guzmán jurors’ actions might provide a ray of legal hope for the drug lord, authorities presented him with new difficulties this week.
The Department of Justice on Thursday announced drug indictments against two of Guzmán’s sons, Joaquín Guzmán Lopez and Ovidio Guzmán Lopez. They’re charged with a conspiracy to distribute cocaine, methamphetamine, and marijuana for importation into the United States.
The Guzmán brothers are believed to reside in Mexico. Federal prosecutors have not said publicly whether they would seek to extradite the brothers to the U.S. for trial, the same procedure that brought their father to trial.
Follow USA TODAY reporter Kevin McCoy on Twitter: @kmccoynyc