Cooch v. S & D River Island, LLC

REPORTED

IN THE COURT OF SPECIAL APPEALS
OF MARYLAND

No. 1800

September Term, 2012

DEBRA COOCH

v.

S&D RIVER ISLAND, LLC, ET AL.

Eyler, Deborah S.,
Nazarian,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),

JJ.

Opinion by Moylan, J.

Filed: February 27, 2014
 There is a venerable body of law, of which Wernsing v. General Motors Corp., 298

Md. 406, 470 A.2d 802 (1984), is the avatar, seeking to preserve the advantages of finality

and repose in jury verdicts once rendered. There is a counter body of law, of which Jenkins

v. State, 375 Md. 284, 825 A.2d 1008 (2003), is the more recent avatar, dedicated to rooting

out jury verdicts that are tainted. There is unquestioned merit in both philosophies. At

times, however, they meet in tectonic collision.

There is an understandable tendency in those moving for new trials on the basis of

tainted verdicts to wrap themselves in the mantle of Jenkins (and several criminal cases in

its slip stream) and to pay faint heed to the long procession of opinions in the Wernsing v.

General Motors tradition. There is a counter tendency, as the State opposes the retrial

motions, to exalt the pedigree of Wernsing and to give scant, if not disdainful, notice to

Jenkins. Opposing advocates sometimes challenge an appellate court to flip a coin between

conflicting and seemingly irreconcilable approaches. There has to be a better way.

A Plague of Bedbugs

The appellant, Debra Cooch, a public school custodian and a grandmother, was a

longtime resident of the River Front Apartments in Savage, Maryland. She rented her

apartment, in a 12-unit apartment building, from one of the appellees, S&D River Island,

LLC. The other appellee, Rolling Park Management, LLC, managed the apartment

complex. Between March and July of 2010, bedbugs that had initially appeared on the third

floor of the building found their way into the appellant's apartment.
 The appellant promptly reported the infestation to the appellees. On three occasions

over the next four weeks, a pest control company treated the appellant's apartment with

pesticides. The human counterattack was to no avail. The appellant stopped sleeping in her

bed and retreated to a couch. The bedbugs followed. The appellant made numerous

complaints to the Howard County Code Enforcement Office. Ultimately, under a barrage

of complaints the appellees terminated the appellant's lease. Concerned that her personal

belongings were actually or potentially infested but unable to secure a treatment that would

give her a 100% guarantee that her belongings would be free of bedbugs, the appellant left

her furniture in the apartment when she moved out. She discarded many other belongings

before moving in with her daughter. Her daughter incidentally forbade the appellant to

bring any of her furnishings into the daughter's home.

On November 12, 2010, the appellant filed suit in the Circuit Court for Howard

County against the appellees, claiming that she had suffered both personal injury and

property damage as a result of the appellees' negligence in failing to rid her apartment of the

bedbugs. A three-day trial followed before Judge Richard S. Bernhardt and a jury on

August 20-22, 2012. At the trial, the core of the controversy was over the property damage.

Judge Bernhardt instructed the jury, inter alia, that the plaintiff has a duty to make

reasonable efforts to reduce the damages. On August 22, the jury returned its verdict. The

jury found 1) that the appellees owed a duty of reasonable care to the appellant; 2) that the

appellees breached that duty of care; but 3) that there was no causative connection between

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that breach and the injury suffered by the appellant. Having found no liability, the jury did

not consider the question of damages. With respect to the third question, that of "causation,"

the Verdict Sheet in its entirety showed:

3. Causation:

Was there a direct and substantial connection between the actions or

omissions of S&D River Island, LLC and Roland Park Management, LLC,

Inc. and the injuries to Debra Cooch?

Yes ____ No __x__

The Motion For A New Trial

The trial was adjourned and the jury dismissed. Daniel W. Whitney, Esq., attorney

for the appellant, was, shortly after the trial adjourned, standing near the stairs in the parking

lot in front of the court house entrance. He noticed a group of jurors walking in his

direction. He asked the group if they were willing to talk to him, reminding them that they

were under no obligation to do so. Most continued walking to their cars, but one, known

to us only as A.B., was willing to discuss the case.

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 It is through the affidavit of Daniel Whitney in support of the new trial motion that

we know what A.B. said.1 It is skimpy, indeed. When Whitney asked, "What can you tell

me?," A.B. replied that the jury had found both a duty and a breach thereof, but that "Debra

Cooch shouldn't have discarded her property." A.B. further volunteered that he "did some

online research" and "found out that there are companies that provide fumigation services."

A.B. concluded that "it wasn't necessary to throw her stuff away." With respect to the

appellant's claim for bodily injury, A.B. said that he did not believe her injuries were "life

threatening." Whitney thanked A.B. for speaking to him and then walked to his own car.

He had no contact with A.B. after August 22, 2012. That brief exchange is the sum total of

the appellant's case that the jury verdict, finding no causation and awarding no damages, was

the result of the impropriety on the part of juror A.B. in conducting online research.

On August 30, 2012, the appellant filed a Motion for Partial New Trial "as to

damages only." Two paragraphs of the motion bore on the allegedly improper conduct of

juror A.B.

1. At least one juror's decision not to award any property damages

was based on Internet research he performed during trial concerning

mitigation of a bed bug infestation through fumigation. This egregious

misconduct prejudiced Plaintiff. Such information was not presented in Court

1
There is also an affidavit from Jeffrey C. Shipley, Esq., co-counsel for the appellant,
who joined Whitney's conversation with A.B. and heard most of it. It adds nothing,
however, to the Whitney affidavit.

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 as a mitigation option available to the Plaintiff. Elimination of bed bugs by

fumigation would have been inadmissible at trial without foundational

testimony that such a process was reasonably available in Howard County in

2010, approved by a County Code Enforcement Officer, allowed by the

landlord and economically feasible.

.....

3. Plaintiff's motion for a partial new trial must be granted because

at least one juror improperly obtained information from the Internet, which

improperly influenced the jury, and therefore unfairly prejudiced Plaintiff.

(Emphasis supplied).

The appellant filed a Memorandum in Support of Plaintiff's Motion for Partial New

Trial. On September 15, 2012, the appellees filed their Defendant's Opposition to Plaintiff's

Motion for Partial New Trial. On October 15, 2012, Judge Bernhardt issued his Order

denying the partial new trial motion. This appeal followed.

An Insignificant Nuance

There is a procedural nuance in this particular case that makes no difference to the

ultimate outcome, but is unusual and may, therefore, be worthy of note. The information

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being proffered to establish a juror's impropriety was, directly at least, from the affidavit of

a non-juror, the attorney Daniel Whitney. Whitney, however, had no direct knowledge of

the alleged impropriety. He was simply the conduit for knowledge from the juror A.B. A.B.

was the source of the allegedly verdict-impeaching evidence.

That the actual source of the allegedly impeaching evidence was a hearsay declarant

rather than an actual or proffered witness is, however, immaterial. The source of the

evidence, direct or indirect, was a juror. Our analysis will proceed, therefore, on the basis

of a juror's offering evidence to impeach the jury's verdict. See Dorsey v. State, 185 Md.

App. 82, 110, 968 A.2d 654 (2009) ("Asking the jurors directly about their deliberations,

or asking a third-party to provide hearsay testimony about the jury deliberations, would have

constituted an inquiry into the validity of the verdict.").

A Doctrine of Creditable Vintage

The body of law controlling this case is, if not ancient, at least unimpeachably

venerable. It did not begin with the Court of Appeals decision in Wernsing v. General

Motors. Judge Rodowsky simply picked up the torch from Lord Mansfield. It was William

Murray, first Earl of Mansfield and Lord Chief Justice of the King's Bench, who decided the

case of Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944, in 1785. There was an affidavit there,

on a motion to set aside a verdict, from two jurors "who swore that the jury, being divided

in their opinion, tossed up (presumably flipping a half crown or at least a farthing), and that

the plaintiff's friends won." Lord Mansfield declined to receive the affidavit, pointing out

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that any juror who even offered such information would be guilty of "a very high

misdemeanor" and further observing that "in every such case the Court must derive their

knowledge from some other source: such as from some person having seen the transaction

through a window, or by some such other means." It is now a time-honored principle that

is with justification still called Lord Mansfield's Rule.

In McDonald v. Pless, 238 U.S. 264, 268, 35 S. Ct. 783, 59 L. Ed. 1300 (1915), the

United States Supreme Court described the origin and impact of Lord Mansfield's Rule.

Prior to 1785 a juror's testimony in such cases was sometimes received,
though always with great caution. In that year Lord Mansfield, in Vaise v.
Delaval, 1 T.R. 11, refused to receive the affidavit of jurors to prove that their
verdict had been made by lot. That ruling soon came to be almost universally
followed in England and in this country.

(Emphasis supplied).

The first appellate decision in Maryland to recognize Lord Mansfield's Rule was

Browne v. Browne, 22 Md. 103 (1864).2 After a verdict had been rendered, four separate

jurors submitted affidavits stating that one of the jurors had been suffering during the course

of the trial from a painful disorder of the bowels. That juror swore that he voted for a

verdict with which he disagreed only "in order to obtain his release from the confinement

of the jury room." Three other jurors swore that they voted for the verdict with which they

2
The principle was earlier briefly referred to in a note to Bosley v. Chesapeake
Insurance Company, 3 Gill & Johnson 450, 473 (1831).

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disagreed "for the purpose of relieving" their ailing colleague. The Court of Appeals was

adamant that such juror impeachment of their verdict should not be allowed.

To allow a verdict of a jury solemnly rendered, to be afterwards
impeached upon such testimony, would, we think, be setting a dangerous
precedent, tending in most cases to the defeat of justice. Although in some of
the States a different practice has been allowed, we think the law in Maryland
is well settled, that "the testimony of jurors cannot be heard to impeach their
verdict, whether the conduct objected to in the jury be misbehaviour or
mistake."

22 Md. at 113 (emphasis supplied). The Court further pointed out that the exclusion of such

testimony "is supported, not only by the authority of adjudged cases in England and in this

country, but by sound reason and public policy." 22 Md. at 114. The Court of Appeals

concluded emphatically:

To permit [the verdict] now to be impeached, by an inquiry into the motives
of jurors for assenting to it, would be clearly against public policy, tending to
overthrow the safeguards of trial by jury, and in most cases defeat justice by
exposing every verdict to impeachment.

Id. (emphasis supplied).

The next reported Maryland decision to deal with the subject was Brinsfield v.

Howeth, 110 Md. 520, 73 A. 289, in 1909. A juror in that case submitted an affidavit

charging that he had only voted for a verdict with which he disagreed because other

members of the jury had threatened him, cursed at him, and otherwise pressured and

intimidated him. The Court of Appeals affirmed the decision of the trial judge not to receive

the evidence at a hearing on a motion for a new trial. "The rule, which obtains in nearly all

the states, is that a juror will not be permitted to impeach his verdict. It prevails both in

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England and in the federal courts." 110 Md. at 530. Quoting with approval from 14 Ency.

Pleading & Practice 906, the Court of Appeals explained the policy behind the rule.

Such evidence is forbidden by public policy, since it would disclose the
secrets of the jury room, and afford an opportunity for fraud and perjury. It
would open such a door for tampering with weak and indiscreet men that it
would render all verdicts insecure, and therefore the law has wisely guarded
against all such testimony and has considered it unworthy of notice. It would
be a most pernicious practice, and in its consequences dangerous to this much-
valued mode of trial, to permit a verdict, openly and solemnly declared in the
court, to be subverted by going behind it and inquiring into the secrets of the
jury room.

110 Md. at 530-31 (emphasis supplied).

The hard core of Lord Mansfield's Rule has consistently been that a juror will not be

permitted to impeach his own verdict. Over the decades, Maryland routinely applied that

core principle. In Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782 (1924), the charge

was made by a juror that he had been improperly approached by a friend of the defendant.

In rejecting the evidence, the Court of Appeals held:

In that affidavit Todd attempted to impeach his own verdict. For that
purpose it was clearly inadmissible, and while the facts which it embodies, if
true, would be sufficient to warrant appropriate proceedings to punish the
persons who attempted to discredit the administration of justice by improperly
influencing the verdict of the jury, under no circumstances could the affidavit
be considered for the purpose for which it was offered at the hearing of the
motion for a new trial.

145 Md. at 328-29 (emphasis supplied).

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 In Oxtoby v. McGowan, 294 Md. 83, 101, 447 A.2d 860 (1982), the charge was that

a medical book had been improperly brought into the jury room and had been examined by

the jurors. In rejecting the evidence, the Court of Appeals noted:

Regardless of the rule in other jurisdictions, in Maryland it is well
settled that a juror cannot be heard to impeach his verdict, whether the jury
conduct objected to be misbehavior or mistake.

(Emphasis supplied). See also Christ v. Wempe, 219 Md. 627, 642, 150 A.2d 918 (1959)

("The proffered testimony [of] jurors in the instant case as to what took place in the jury

room was properly not received."); Aron v. Brock, 118 Md. App. 475, 512-27, 703 A.2d

208, cert. denied, 346 Md. 629, 697 A.2d 913 (1997); Dixon v. State, 27 Md. App. 443,

447-49, 340 A.2d 396, cert. denied, 276 Md. 741 (1975) ("Maryland, however, has not

deviated from the rule that what occurs in the jury room, generally, remains in the jury

room."); Dorsey v. State, 185 Md. App. 82, 100-11, 968 A.2d 654 (2009).

Lord Mansfield's Rule: Procedural Fine-Tuning

In pristine form, Lord Mansfield's Rule is simply that a juror will not be permitted to

impeach the jury verdict of which he had been a part. In application, of course, the simple

rule is not always so simple. Would someone other than a juror, for instance, be permitted

to impeach a jury's verdict? Would the juror himself be prohibited from testifying about the

improprieties of himself or other jurors that occurred outside the courtroom or would the

prohibition be limited to conduct in the jury room or in the course of deliberations? How

about the possible impact that an outside impropriety might have had on the vote the juror

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himself cast? Suppose, moreover, the impropriety had been trivial and inconsequential.

From the predicate of an impropriety, may dispositive prejudice be presumed or must it be

proved by the party seeking to impeach the verdict?

Quite obviously, the basic instrument of the rule called for some procedural fine-

tuning. For Maryland, Wernsing v. General Motors, supra, was the seminal case for

retrofitting the venerable principle with up-to-date procedures. In Wernsing, the jury

impropriety in issue was that a dictionary had been improperly introduced into the jury room

by the court bailiff at the request of the jury foreman. The dictionary's definitions of

"proximate," "proximately," and "legal" were out of sync with the trial judge's definition of

"proximate cause" and that was the key issue in the case.

A. What Sources of Information Are Permissible?

In Wernsing, information about the introduction of the dictionary into the jury room

came from four types of source: 1) affidavits from four separate jurors; 2) testimony by a

bystander who heard the foreman and two other jurors conversing, post-verdict, about the

dictionary and the role it played in securing a unanimous verdict; 3) the testimony of the

bailiff who delivered the dictionary to the jury; and 4) certain notes made by several of the

jurors during their deliberations. The Court of Appeals carefully distinguished permissible

sources from impermissible sources. The Court ruled that the four affidavits from jurors

themselves could not be received.

The post-verdict affidavits in the instant case are a particularly gross example
of soliciting a reconstruction of a juror's mental processes in reaching the

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 verdict. This is precisely the type of attempted undermining of verdict finality
which Maryland law does not permit.

298 Md. at 411-12. The affidavit from the bystander also could not be considered. Albeit

not a juror himself, he quoted what jurors said about their deliberative process, making them

the indirect sources of impeaching information.

The affidavit by the participant in the post-verdict conversation between
certain jurors attempts to prove the truth of the content of the statements made
by the foreman in that conversation. Even if we assume the affidavit is
otherwise admissible, it falls within the prohibition described above.

298 Md. at 412.

The testimony of the bailiff, by contrast, was completely admissible. He was not a

juror and he was not revealing anything about jury deliberations.

On the other hand, the testimony of the bailiff presents "a different situation"
and is competent.

298 Md. at 413. The admissibility of the notes left in the jury room is also interesting.

Similarly, the jury notes ... are competent proof. As documents generated
during the jury's deliberations, they do not suffer the taint of possible post-
verdict importuning.

Id. See also Christ v. Wempe, 219 Md. 627, 642, 150 A.2d 918 (1959).

In Harford Sands, Inc. v. Groft, 320 Md. 136, 577 A.2d 7 (1990), the Court of

Appeals engaged in the same meticulous sorting of those sources permitted to offer evidence

of jury infractions and the sources not so permitted. The infraction in that case was that a

juror, Carroll O'Keefe, on a luncheon break and in violation of an instruction not to do so,

had talked to workers at a construction site near the courthouse and had discussed with them

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the capabilities of concrete pumping machines. Four additional affidavits were proffered

from persons other than the juror.

Affidavits from two construction workers about the lunchtime conversation were

permitted. They dealt with an extraneous matter occurring outside the jury room, to wit, a

conversation at the construction site. One affidavit from trial counsel describing a post-trial

conversation with the juror O'Keefe, on the other hand, was not permitted. In that

conversation, O'Keefe had described himself as "the strongest proponent of the defendants'

position on the jury." The Court of Appeals also did not countenance an affidavit from a

spectator at the trial who swore she had discussed the trial with O'Keefe after it was over and

he had told her that he was "the strongest member of the jury." Those forbidden

conversations described O'Keefe's role in the jury deliberations. The cordon sanitaire of

Lord Mansfield's Rule insulated from review anything that a juror may have been thinking

in the course of deliberating a verdict. The information offered by the juror himself was

partly in and partly out, as will be discussed infra in the next sub-section.

B. The Precise Nature of A Juror's Testimony

As the implementing procedures are more finely tuned, even the prohibition on

verdict-impeaching testimony from a juror himself loses its apparent simplicity. It is

sometimes in and sometimes out. More precisely, it is sometimes partly in and partly out.

If the juror's testimony is about an extraneous infraction, even one by the juror himself, that

took place outside the jury room, the court is willing to receive such evidence from the juror.

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It is deemed to be "extraneous matter." What is absolutely prohibited is testimony from a

juror that bears directly on the deliberative process itself. The juror is, therefore, barred

from testifying as to what effect any information learned in the course of the infraction may

have had on the juror's own decision as well as on the decisions of other jurors.

In Harford Sands, Inc. v. Groft, the juror who committed the infraction by going,

during a luncheon break, and talking to a construction worker about issues in the case was

Carroll O'Keefe. The Court of Appeals held that the testimony from O'Keefe that "he had

talked to workers at the construction site during the lunch break ... and that he had discussed

with them the capabilities of concrete pumping machines" was receivable at the hearing on

the new trial motion. That, even from the juror himself, was extraneous matter and,

therefore, admissible. 320 Md. at 141. His testimony, by contrast, about what "we debated

in the jury room" was prohibited. 320 Md. at 142.

In Smith v. Pearre, 96 Md. App. 376, 625 A.2d 349, cert. denied, 332 Md. 454, 632

A.2d 151 (1993), the infraction occurred when the jury foreman disobeyed the order of the

court and watched on television a segment on "60 Minutes" that bore on the subject matter

at issue in the trial. Although the jury foreman was barred from testifying about anything

that was said during jury deliberations and even about any effect that "60 Minutes" exposure

may have had on his own decisional process, he was not barred from testifying about the

infraction itself which had occurred outside the jury room.

The jury foreman's observance of the program constitutes extraneous
material that occurred outside the sanctity of the jury room. Therefore,

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 evidence of the foreman's observance of the program may be properly
considered by the trial court, but the court may not consider what occurred
during jury deliberations.

96 Md. App. at 390 (emphasis supplied).

C. The Proof of Prejudice

It was also with respect to the proof of prejudice that Wernsing firmly established the

prevailing procedure – at least in civil cases. An infraction is not enough. Christ v. Wempe,

219 Md. at 642 ("Every act on the part of a juror (or court official) during the course of a

trial, even though irregular, may not amount to such misconduct as requires a new trial.").

Wernsing was firm that prejudice will not be presumed but must be proved.

We reject the rule which presumes prejudice solely from delivery of a
dictionary into the jury room without the consent of the court and all parties.
The result of such a rule in Maryland would be to overturn verdicts
automatically in nearly all cases where this irregularity occurs. The reason is
that the party opposing a new trial would almost never be able to demonstrate
the absence of harm from the presence in the jury room of the extraneous
material, because jurors may not be interrogated concerning their deliberations
in order to impeach the verdict. It is true that some courts permit juror
affidavits for the purpose of sustaining a verdict; but that is not Maryland
practice.

298 Md. at 416 (emphasis supplied). Judge Rodowsky's opinion then elaborated on why

Maryland does not indulge a presumption of prejudice.

Further, a presumption of prejudice from the unauthorized presence of
a dictionary is inconsistent with the rule we apply when, in the course of trial
and before the jury retires, it is learned that a juror has received information
concerning the case from a source outside of the record. In those
circumstances prejudice is not presumed; rather the test is "whether the
conversations were 'of such a nature that their effect must fairly be held to
have been to deprive the injured party of a fair and impartial trial.'"

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Id. (emphasis supplied).

On a new trial motion based on jury misconduct, it is the trial judge who must decide

whether the admissible evidence establishes a probability of prejudice. The trial judge's

decision will then be assessed on an abuse of discretion standard.

The Court of Special Appeals clearly identified the problem in the
instant case. It is to balance the right to a fair trial with the policy prohibiting
impeachment by a juror of the verdict. Where, as here, the precise extraneous
matter is known but direct evidence as to its effect on the deliberations is not
permitted, a sound balance is struck by a rule which looks to the probability
of prejudice from the face of the extraneous matter in relation to the
circumstances of the particular case. It is the function of the trial judge when
ruling on a motion for a new trial to evaluate the degree of probable prejudice
and whether it justifies a new trial. That judgment will not be disturbed but
for an abuse of discretion.

Id. at 419-20 (emphasis supplied).

In Smith v. Pearre, a medical malpractice case, the jury foreman, in direct violation

of the court's order not to do so, on an overnight recess during the trial listened to a

television segment on "60 Minutes" that could have had a direct bearing on the issue before

the court. On the issue of prejudice, this Court held that there is no presumption of

prejudice. It must be proved.

[W]e conclude that while it was possible that the "60 Minutes" segment
influenced the jury foreman we are not convinced that it probably resulted in
prejudice. We find no abuse of discretion in the trial court's decision to deny
a motion for new trial.

96 Md. App. at 391 (emphasis in original).

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 It was here, on the proof of prejudice, that there ultimately developed the rift between

Lord Mansfield's Rule in a civil trial and Lord Mansfield's Rule in a criminal trial that has

become essentially unbridgeable. The criminal cases have taken off on a path of their own.

Maryland Rule 5-606(b)

The substance of Lord Mansfield's Rule has been, as of July 1, 1994, encapsulated

in Maryland Rule 5-606(b), which provides:

(b) Inquiry into Validity of Verdict. (1) In any inquiry into the
validity of a verdict, a sworn juror may not testify as to (A) any matter or
statement occurring during the course of the jury's deliberations, (B) the effect
of anything upon that or any other sworn juror's mind or emotions as
influencing the sworn juror to assent or dissent from the verdict, or (C) the
sworn juror's mental processes in connection with the verdict.

(2) A sworn juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from testifying
may not be received for these purposes.

(3) Notes made under Rule 2-521(a) or Rule 4-326(a) may not be used
to impeach a verdict.

Inapt Analogies

A particularly treacherous analytic snare that should be carefully avoided is easy

reliance on cases that share the alluring common factor of a jury infraction but that do not

truly engage the gears of Lord Mansfield's Rule. When a jury infraction is discovered before

a verdict has been rendered (or at any time before the jurors have ultimately dispersed), there

is no bar to a juror's giving evidence about the infraction. The sanctity of an enrolled verdict

is in no way involved. There is no repose to be protected. The extreme sanction is a

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mistrial, thus preventing a final verdict from even being rendered. The proof or presumption

of prejudice is by no means the same, because curative measures and tools for further

investigation are still available that are not available in cases engaging Lord Mansfield's

Rule. Jurors and others can be investigated with respect to the infraction. Each and every

juror can be examined, by the judge or otherwise, as to any possible influence the infraction

may have had on that juror's thinking. Curative instructions may be given. Alternate jurors

may be called upon to fill a gap. We are not dealing with the disruption of a final judgment.

Except for the enticing common factor of the initial infraction itself, the two

situations are completely unlike. Analogizing, though tempting, is treacherous. In a case

involving Lord Mansfield's Rule, the careful analyst should, therefore, avoid reliance on

cases involving such pre-verdict infractions as Wardlaw v. State, 185 Md. App. 440, 971

A.2d 331 (2009). See also Johnson v. State, 423 Md. 137, 31 A.3d 239 (2011); Stokes v.

State, 379 Md. 618, 843 A.2d 64 (2004); State Deposit Insurance Fund Corp. v. Billman,

321 Md. 3, 580 A.2d 1044 (1990); Summers v. State, 152 Md. App. 362, 831 A.2d 1134,

cert. denied, 378 Md. 619, 837 A.2d 929 (2003); Allen v. State, 89 Md. App. 25, 597 A.2d

489 (1991), cert. denied, 325 Md. 396, 601 A.2d 129 (1992); Eades v. State, 75 Md. App.

411, 541 A.2d 1001, cert. denied, 313 Md. 611, 547 A.2d 188 (1988). It is dangerous to

analogize when the circumstances are not analogous.

In the case before us, for instance, the appellant relies heavily on Wardlaw v. State,

supra, and its use of presumptive prejudice. That, however, was a case where the trial judge

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did not voir dire the jury after the infraction had been discovered and, therefore, erroneously

denied a motion for a mistrial. In this case, by contrast, such curative measures were not a

possibility. In Wardlaw, moreover, finality was not being jeopardized and there was no

necessity to balance competing sets of values. The situations are not comparable. A hasty

analogy would be a false analogy.

Allen v. State was one of those cases where the infraction was discovered before a

verdict had been rendered and various curative measures were not foreclosed by Lord

Mansfield's Rule. Judge Motz for this Court pointed out how very different the two

procedural postures are:

Maryland follows Lord Mansfield's Rule and thus "it is well settled that a
juror [in Maryland] cannot be heard to impeach his own verdict." Here, the
problem of post-verdict impeachment is not at issue because the voir dire of
the affected jurors occurred prior to the delivery of a verdict. In other words,
the trial court's examination of the jurors and conclusion that they would not
be prejudiced by the extrinsic information will not be disregarded on the
grounds that the voir dire violated Maryland's strict verdict impeachment
prohibition.

89 Md. App. at 47 n.9 (emphasis supplied). See also Aron v. Brock, 118 Md. App. 475,

526, 703 A.2d 208 (1997).

Indeed, in Eades v. State, 75 Md. App. at 419, Judge Karwacki carefully noted the

difference between these two very different contexts:

Because the court in the case sub judice elicited juror Skinner's statements
during his interview of the individual jurors immediately following the return
of their verdict, juror Skinner's response to the court's question did not run
afoul of Lord Mansfield's rule. It was therefore properly received and
considered.

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(Emphasis added and in original). Eades was a case of "Lord Mansfield's Rule

inapplicable." A careless or unscrupulous advocate could easily cite it as a case of "Lord

Mansfield's Rule satisfied." It is wise to steer clear of such a minefield.

Jenkins v. State and Presumptive Prejudice

The appellant relies heavily on Jenkins v. State, 375 Md. 284, 825 A.2d 1008 (2003),

and the idea that once an infraction of the rules regulating the jury has been shown,

prejudice may be presumed. The appellant may well be reading her own wishful thinking

into the Jenkins opinion. Jenkins was a criminal case. As we shall be discussing, infra, over

the course of the last 50 years and affecting far more than the handling of Lord Mansfield's

Rule in Maryland, a sea change has occurred in the law's thinking about criminal procedure

that to some extent has driven a wedge between civil trials and criminal trials that was not

always present. The appellant's trial was a civil one and for that reason her reliance on

Jenkins may be inapt.

In the Jenkins case, there was a weekend break in the trial. Without any prior

planning and without even knowing each other in advance, a police witness, Detective

Patrick Pikulski, and one of the jurors, Bruce McDonald, were scheduled to attend the same

two-day religious retreat. On Friday night of the retreat and recognizing Detective Pikulski,

Juror McDonald introduced himself, "Look, you don't know who I am, but I'm a juror in a

case that you testified in, and I can't have any dealings with you." They did not discuss the

case in any way. At a seminar the next morning, they were accidentally seated next to each

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other. After the seminar was over, they did go to lunch together. According to them, their

conversation over lunch focused on McDonald's employment in environmental matters and

Detective Pikulski's son's schooling in chemistry and interest in the environment. Both

denied ever discussing the case.

When that initially accidental but nonetheless improper contact was brought to the

trial judge's attention at the post-verdict new trial motion hearing, the judge, in a written

opinion, denied the motion. He found that the contact had initially occurred inadvertently

but that it was nevertheless contrary to his instructions and was improper. In detailed

findings, he ruled that Jenkins had not actually been prejudiced by the contact. The case was

appealed to this Court. In Jenkins v. State, 146 Md. App. 83, 806 A.2d 682 (2002), this

Court affirmed. In her opinion, Judge Deborah Eyler held that there was neither clear error

nor an abuse of discretion.

Our review of the record reveals that the trial court's factual findings
concerning the issue of prejudice were supported by competent evidence and
were not clearly erroneous; that its second-level factual finding that the
appellant's due process rights were not harmed by the contact likewise was
supported by the evidence and was based in reason; and that its decision to
exercise discretion to deny the appellant's motion for new trial was sound and
not abusive.

146 Md. App. at 111 (emphasis supplied). The Court of Appeals granted certiorari.

Although, at the outset of its opinion, the Court of Appeals announced that it would

"review the trial judge's denial of petitioner's motion for a new trial ... under an abuse of

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discretion standard," 375 Md. at 299, it effectively held that under the particular

circumstances of that case, the trial judge had no discretion.

In conclusion, we hold that, under the highly unusual circumstances of
the case at bar, in a criminal prosecution, when a juror and a witness have
significant and intentional mid-trial personal conversations and contact in
violation of court orders, such as having lunch together, there is an inherent,
and given the constraints of Maryland Rule 5-606, virtually irrefutable,
prejudice to the defendant when, as in the case sub judice, the misconduct is
concealed until after the verdict has been rendered and accepted and the jury
discharged. We hold that the prejudice in this case was not sufficiently
rebutted. We note that it is virtually always improper for witnesses,
particularly police witnesses, to go to lunch with a juror during the middle of
a trial. As this misconduct was left uncorrected, petitioner did not receive an
impartial jury trial as mandated by the United States Constitution and the
Maryland Declaration of Rights. Accordingly, we reverse the decision of the
Court of Special Appeals.

375 Md. at 340-41 (emphasis supplied). The opinion expressly noted, however, that

everything it was saying it was saying in the context of "a criminal prosecution."

From the conduct of the juror and the police witness in prolonging their relationship,

even if not discussing the case on trial, Jenkins held that a presumption of prejudice arose.

That was a departure from the handling of prejudice in a civil trial context and it is that

presumptive prejudice that the appellant seeks to utilize in the case now before us. In

employing the device of presumptive prejudice, however, the Jenkins opinion again

carefully noted that it was relying heavily on the Supreme Court's decision in Remmer v.

United States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954). Remmer, like

Jenkins, was a criminal case. It was, moreover, a case involving the fundamental Sixth

Amendment right to trial by jury.

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 "In a criminal case, any private communication, contact, or tampering directly
or indirectly, with a juror during a trial about the matter pending before the
jury is, for obvious reasons, deemed presumptively prejudicial[.]"

(Emphasis supplied). Whatever may have been happening with respect to post-verdict

revisiting and reopening of criminal convictions, there was no indication that anything

comparable was happening in the more tranquil context of civil verdicts.

Indeed, Jenkins did not quarrel with the accepted handling of prejudice in civil cases.

Except for a passing footnote on another issue, it never mentioned Wernsing v. General

Motors and never mentioned Smith v. Pearre, supra, at all, the leading Maryland cases on

proving prejudice under Lord Mansfield's Rule. Wernsing held squarely, 298 Md. at 416,

that "a presumption of prejudice ... is inconsistent with the rule we apply when, in the course

of trial and before the jury retires, it is learned that a juror has received information

concerning the case from a source outside of the record. In those circumstances prejudice

is not presumed." Wernsing announced the test that should apply under Lord Mansfield's

Rule:

Where, as here, the precise extraneous matter is known but direct evidence as
to its effect on the deliberations is not permitted, a sound balance is struck by
a rule which looks to the probability of prejudice from the face of the
extraneous matter in relation to the circumstances of the particular case. It is
the function of the trial judge when ruling on a motion for a new trial to
evaluate the degree of probable prejudice and whether it justifies a new trial.
That judgment will not be disturbed but for an abuse of discretion.

298 Md. at 419-20 (emphasis supplied). Wernsing had earlier said, 298 Md. at 416, "[w]e

reject the rule which presumes prejudice solely from delivery of a dictionary into the jury

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room .... The result of such a rule in Maryland would be to overturn verdicts automatically

in nearly all cases where this irregularity occurs."

Smith v. Pearre, in turn, had clearly not indulged in any presumption of prejudice

when it held that "while it was possible that the '60 Minutes' segment influenced the jury

foreman we are not convinced that it probably resulted in prejudice." 96 Md. App. at 391

(emphasis in original). Jenkins did not challenge in any way the pre-existing Maryland

caselaw on proof of prejudice in civil cases. It may, however, have placed a second

modality for proving prejudice in the field in the case of criminal verdicts.

An Attitudinal Change In Revisiting Criminal Verdicts

It should not be at all surprising that a body of law that traditionally placed extremely

high values on repose and the finality of cases once decided did not emerge unscathed from

the Warren Court Revolution that began in the 1960s. That revolution left the trial of civil

cases largely untouched, but it has worked a complete upheaval not only in criminal

procedure but in the undergirding attitude we bring to bear on criminal verdicts once

seemingly in repose.

Time was for Lord Mansfield's Rule that the distinction between a civil trial and a

criminal trial was essentially a distinction without a difference or, at most, a very modest

speed bump. As a result of 50 years of radical change in the criminal law, however, that

once largely indiscernible difference has become, or is becoming, an ever-widening abyss.

To pretend that the abyss is not now there would be foolhardy.

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 As a result of new post-conviction procedures, writs of habeas corpus federal and

state, writs of error coram nobis, and writs of actual innocence, long closed criminal cases

are being reopened with regularity. In 6 Lynn McLain, Maryland Evidence, § 606:2(b), at

500-01 (3d ed. 2013), Professor McLain has noted the latter-day ability of constitutional

criminal procedure to trump the traditional application of Lord Mansfield's Rule.

Under Maryland law, the rule is that jury verdicts may be impeached
only by evidence independent of jurors' post-verdict statements. Note,
however, that in criminal cases, on habeas review by a federal court, the state
rule has been held not to preclude post-conviction interviews by the court of
jurors, on the theory that the defendant's confrontation right may have been
violated by the use of extra-trial materials in the jury room.

(Emphasis supplied).

The shift in attitude has been dramatic. The phenomenon of reopening long closed

cases is now not only tolerated, it is celebrated. This shift has inevitably influenced Lord

Mansfield's Rule, if not at its core, at least in its implementing procedures such as the proof

of prejudice. At the very least, there is a discernible wedge between the handling of a civil

verdict and the handling of a criminal verdict.

A Civil-Criminal Separation Has Undeniably Occurred

That this truly revolutionary upheaval in criminal procedure would work a change in

jury impeachment law was inevitable. Wernsing v. General Motors and Jenkins v. State no

longer co-exist in a single undivided field. If they do not represent different bodies of law,

they represent, at the very least, distinct sub-bodies of law in two different quadrants of what

was once, but is no longer, a single undivided field. For purposes of the civil case now

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before us, therefore, Jenkins v. State does not apply. Its presumption of prejudice from the

very existence of an infraction applies only in criminal cases and this is not a criminal case.

Whatever the permutation of proving prejudice in a criminal trial may turn out to be,

it is unnecessary for us to consider it in this civil case. It is enough for us to hold that the

modality for proving prejudice in a civil case remains what it always has been.

Egregiousness Is Not A Burden-Shifting Trigger

Enjoying a presumption of prejudice is far easier than proving prejudice the old-

fashioned way, but it represents a diametric reversal of the traditional allocation of the

burden of proof. What precisely then is the procedural trigger that can bring about such a

reallocation? In looking at the proof of prejudice under Lord Mansfield's Rule, it is clear

that such latter-day reallocations of the burden of proof are not to be found among the civil

cases. On the criminal side, by contrast, where the prevailing philosophy no longer tolerates

allowing a criminal conviction to hide under the foreclosing shroud of finality, the use of

presumptive prejudice is being increasingly employed.

In looking for a workable rule that is more than just random, one finds the adjective

"egregious" very much in vogue. Though stopping short of promulgating a rule, Jenkins v.

State, for instance, stated that, having found the infraction of the jury isolation rule to have

been egregious, it would apply the presumption of prejudice.

Egregiousness of the infraction, however, would seem to be a poor trigger for

reallocating the burden of proof. We fail to find anywhere in the caselaw or in the academic

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commentary any evidence of any correlation between the flagrancy of the infraction and the

likelihood of prejudice. A very flagrant infraction – an agent for a litigant attempting to

bribe or to intimidate one or more jurors – might ultimately produce very little prejudice or

no prejudice at all. A very mild or accidental infraction might, on the other hand, result in

severe prejudice. There is no necessary correlation between the flagrancy or egregiousness

of the infraction and the virulence of the extraneous information communicated by that

infraction.

The only apparent reason for slapping a presumption of prejudice on an egregious

infraction would be as a prophylactic device to punish the violators and thereby to deter

future violations. This, however, has never been a function of Lord Mansfield's Rule. It has

been a rule that focuses on the effect of extraneous information on the jury. It has never

been a rule that focuses on the violation or the violator. See, for instance, Kelly v. Huber

Baking Co., 145 Md. 321, 328-29, 125 A. 782 (1924) ("[W]hile the facts which it embodies

[the infraction], if true, would be sufficient to warrant appropriate proceedings to punish the

persons who attempted to discredit the administration of justice by improperly influencing

the verdict of the jury, under no circumstances could the affidavit be considered for the

purpose" of impeaching the verdict.). Lord Mansfield's Rule is not the Exclusionary Rule.

It is not designed to punish wrongdoing, even egregious wrongdoing, and even to write

about "the public perception of impropriety" is to lose that focus.

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 In yet another regard, egregiousness is a clumsy instrument for a trial judge to apply.

It is subjective to the point of being arbitrary. When the judge wants to reach a result, he can

easily characterize a wide variety of infractions as egregious. When more lackadaisical

about the infraction, he can forego the burden-shifting adjective. Egregiousness is in the eye

of the beholder and it is too subjective to be a workable distinction.

One need only contrast Jenkins v. State with Harford Sands, Inc. v. Groft, supra, to

confirm the disutility of egregiousness as a burden-shifting trigger. In Jenkins the juror and

the witness met by accident although they did thereafter prolong their contact. In Harford

Sands a juror went out deliberately to talk to construction workers about the very issue that

was then before the jury. In Jenkins the witness and the juror never talked about the case.

In Harford Sands the inquisitive juror talked at length with the construction workers about

the subject matter of the case. In Jenkins the juror never said anything about his meeting to

the other members of the jury. In Harford Sands the juror argued for a verdict on the basis

of the information he had improperly learned and he described himself as "the strongest

proponent of the defendants' position on the jury." The infraction in Harford Sands was 50

times as flagrant as that in Jenkins. In Jenkins, however, the infraction was condemned as

egregious. In Harford Sands, a civil case, such a characterization was never employed. In

Jenkins prejudice was presumed and, although there was no evidence that any prejudice

resulted, that presumption was never rebutted. In Harford Sands prejudice was not

presumed and was never proved, although the excluded evidence demonstrated that

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significant prejudice may actually have resulted from the infraction. The point is that if the

infraction in Jenkins was "egregious" and the infraction in Harford Sands was not

"egregious," egregiousness is a useless instrument for triggering a reallocation of the burden

of proof on the issue of prejudice. See also Kelly v. Huber Baking Co., 145 Md. at 328-29.

What Evidence Was Admissible?

Against our now retrofitted version of Lord Mansfield's Rule, we will now measure

the appellant's case. The only source of arguably verdict-impeaching evidence is the hearsay

declaration of the juror A.B. A.B. actually said five things. Putting those five things under

the microscope of Harford Sands, Inc. v. Groft, supra, and Smith v. Pearre, supra, a straight

application of Lord Mansfield's Rule or of Maryland Rule 5-606(b) would immediately

eliminate three of the five from any further consideration.

The first statement to be eliminated would be A.B.'s response when asked by the

appellant's attorney, "What can you tell me?," obviously referring to how the verdict was

reached. When A.B. responded that the jury found a duty and a breach of that duty, that was

no more than what the verdict sheet showed and was not evidence of any jury impropriety.

His further comment, "Debra Cooch shouldn't have discarded her property," however, was

getting into the sensitive area of why no damages were awarded. It was, moreover, an

insight into the jury's deliberative thinking process, or at least into A.B.'s deliberative

thinking process, and was not a proper subject for consideration.

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 A.B.'s subsequent statement that "it wasn't necessary to throw her stuff away" was

also an insight into A.B.'s own deliberative thinking process and was also not a proper

subject for consideration. When finally asked about the appellant's claim for bodily injury,

A.B.'s statement that he did not believe her injuries were "life threatening" was also a

window into how he, and perhaps others, arrived at that part of the verdict. Thus three of

A.B.'s five statements are off the table as not appropriate for any consideration by Judge

Bernhardt on the motion for a new trial. Their consideration was barred by Lord Mansfield's

Rule.

What remain for consideration, however, are A.B.'s statement that he "did some

online research" and his closely related statement that he "found out that there are companies

that provide fumigation services." They are the sum total of evidence to be considered.

Was There Even an Infraction?

In his Order dismissing the appellant's Motion For a Partial Retrial, Judge Bernhardt

commented, "Counsel's affidavit does not include any indication that the juror told him that

the online research occurred during the trial." Because A.B. spoke to Whitney almost

immediately after the trial was over, we readily agree that the online research did not occur

after the trial was over. That still leaves two possibilities. If A.B. had done his online

research before the trial started, that would not have been a violation of the judge's

instructions to the jury not to do such independent investigation. Although in-trial online

research might seem to have been more likely than pretrial online research, the trial judge

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was not obliged to engage in speculation or guesswork in that regard. The burden of proof

is on the moving party. A lot was left unsaid by the only source of evidence. It is not for

us to speculate as to what his answers might have been, had A.B. been produced as a witness

before Judge Bernhardt and subjected to more detailed examination.

The contention may be twice-curst. Even if, arguendo, the online research had

occurred during the course of the trial, at what point more precisely did the infraction occur?

If the online research had been done by A.B. at home during an overnight break in the trial,

that might have been evidence of an infraction at least worthy of further consideration. If,

on the other hand, A.B. had, as many people frequently do in all kinds of circumstances,

picked up his cellphone and done some online research in the jury room in the middle of the

jury's deliberations, such a revelation would be getting back again into the forbidden

territory of Lord Mansfield's Rule. An internal infraction in the midst of the collective

deliberative process is not the same thing as an extraneous infraction committed at home.

Again, A.B. left us, and Judge Bernhardt, with nothing but speculation.

The contention may, indeed, be thrice-curst. Even 1) assuming, arguendo, that the

online research occurred in the course of (and not before) the trial and even 2) further

assuming, arguendo, that the online research had been done at home during an overnight

break, where does that leave the appellant in terms of proving prejudice? In the opinion

accompanying his Order, Judge Bernhardt noted that "there is no basis to believe that the

information was shared with other jurors, discussed during deliberations, or impacted the

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deliberations or verdict." The appellant had to show that it probably did happen, not that it

might possibly have happened. Smith v. Pearre, 96 Md. App. at 391. Prejudice, even if

present, is something that is measured quantitatively. The possible taint of extraneous

information influencing the deliberative process of one juror is quantitatively not as great

as the taint of extraneous information influencing the deliberative process of twelve jurors.

Indeed, it is only 1/12 as great. The caselaw is rife with considerations of whether one

juror's improperly obtained information was or was not shared with other jurors. See, e.g.,

Harford Sands, Inc. v. Groft, 320 Md. at 144.

In assessing prejudice, moreover, at least in a civil case, Wernsing, 298 Md. at 419-

20, demands that the trial judge "look to the probability of prejudice from the face of the

extraneous matter in relation to the circumstances of the particular case." In that regard and

without going into any unnecessary detail, the appellee reminds us that fumigation was at

least mentioned in the record as a possible anti-bedbug measure and that the record is replete

with evidence of the appellant's almost cavalier abandonment of all her personal property,

including many things, such as metallic kitchen utensils, that could not be infested by

bedbugs. See Harford Sands, Inc. v. Groft, 320 Md. at 148-50, Smith v. Pearre, 96 Md.

App. at 391.

In any event and even if, arguendo, the online research by A.B. were a proper fact for

consideration, Judge Bernhardt found that the appellant had not suffered sufficient prejudice

to warrant a new trial. It is certainly not something that, in a civil case at least, will be

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presumed. Our standard of review is a deferential one. We cannot say that Judge

Bernhardt's findings of fact were clearly erroneous. We cannot say that Judge Bernhardt's

final ruling was an abuse of discretion. We affirm.

In A Nutshell

The law is not static. In the context of Lord Mansfield's Rule and elsewhere, there

has emerged over the last 50 years a special solicitude for convicted criminals that does not

extend to unsuccessful litigants in civil cases. That this development is driving a wedge

between the handling of civil and criminal trials should not be surprising. Neither should

it be ignored.

JUDGMENT AFFIRMED; COSTS TO
BE PAID BY APPELLANT.

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