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Case 1:20-cr-00330-PAE Document 644 Filed 03/11/22 Page 12 of 32

Ms. Maxwell is not required to show prejudice, nor must the Court have “a real concern that an
innocent person may have been convicted” before a new trial is required. The government’s
contrary contention is specious.³

The government next invokes cases in which appellate courts have purported to view new
trial motions with “disfavor.” Resp. at 11. These cases, warn the government, counsel against
“inquiries into juror conduct.” Id. Quoting Tanner v. United States, the government says:
“Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time . . .
after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion
in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in
a system that relies on the decisions of laypeople would all be undermined by a barrage of post-
verdict scrutiny of juror conduct.” Id. (quoting Tanner v. United States, 483 U.S. 107, 120-21
(1987)). The government also quotes the Second Circuit’s decision in United States v. Ianniello,
in which the Court said that “post-verdict inquiries may lead to evil consequences: subjecting
juries to harassment, inhibiting juryroom deliberation, burdening courts with meritless
applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts.”
866 F.2d 540, 534 (2d Cir. 1989).

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³ The government draws the “real concern” language from cases addressing new trial
motions based on the conduct of the trial itself—e.g., the admissibility or truthfulness of
testimony of witnesses, McCourty, 562 F.3d at 475, or the quality and sufficiency of the
evidence, Ferguson, 246 F.3d at 134.

The cases cited by the government do not address the fundamental right to trial by an
impartial jury, and they do not undermine the blackletter law that “[a]mong those basic fair trial
rights that ‘can never be treated as harmless’ is a defendant’s ‘right to an impartial adjudicator,
be it judge or jury.’” Gomez v. United States, 490 U.S. 858, 876 (1989) (quoting Gray v.
Mississippi, 481 U.S. 648, 668 (1987)).

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