Tomikia Davis v. Abbas Husain, M.D. (072425)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

Tomikia Davis v. Abbas Husain (A-34-13) (072425)

Argued September 24, 2014 – Decided December 23, 2014

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances under which a trial court may engage in post-verdict
discussions with discharged jurors.

In November 2007, plaintiff Tomikia Davis filed a complaint against her former employer, defendant Dr.
Abbas Husain. In her complaint, she alleged violations of New Jersey’s Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, based on hostile work environment, sexual harassment, and retaliation claims. At trial, when
Husain was sworn in, he raised his right hand and spoke the oath, but did not place his left hand directly on the
Bible. Ultimately, the jury returned a verdict in favor of Davis in the amount of $12,500. After the verdict was
rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the
trial judge had a conversation with the jurors, outside the presence of counsel, which was not recorded. During that
discussion, one juror noted that she was surprised that defendant had not placed his hand on the Bible before he
testified. The judge did not make a record of the juror’s observation, but later informed counsel.

Both parties subsequently filed post-trial motions. A certification by Husain, filed in support of his post-
trial motion, included a brief reference to the juror’s observation. At oral argument on the motion, the trial judge
expressed surprise that information he had provided counsel in confidence ended up in a certification and as part of
the trial record. Ultimately, the court denied Husain’s motion, finding the amount allocated in the verdict fair in
light of the evidence and giving no regard to the comment the juror made in reference to the fact that Husain did not
touch the Bible.

After the judgment was entered, Husain appealed, raising several arguments. Relevant to the limited issue
presented in this appeal as of right, he argued that the trial judge erred by failing to declare a mistrial on the basis of
the juror’s comment about the fact that he did not touch the Bible. In an unpublished decision, a majority of the
Appellate Division panel affirmed the verdict as to this issue, holding that no manifest injustice inhered in the juror’s
observation and comment. Thus, the majority held that a new trial was not warranted. The dissenting judge
maintained that the trial judge had violated the Code of Judicial Conduct and that the juror’s observation was
sufficient to warrant a new trial. Husain appealed to this Court as of right.

HELD: Post-verdict discussions between the court and discharged jurors are prohibited unless those discussions are
part of a hearing ordered on good cause shown pursuant to Rule 1:16-1.

1. Discussions that jurors have while deliberating should remain shielded from litigants, attorneys, and the public
eye. Therefore, only with the court’s permission, and on good cause shown, may an attorney or litigant speak to any
juror with respect to any matter relating to the case. Requesting that a jury participate in questioning following
discharge should only occur after a strong showing that a litigant may have been harmed by jury misconduct. This
standard balances the litigant’s interest in ensuring an impartial jury with the importance of keeping deliberations
secret. A judge’s ability to inquire of jurors after trial is similarly limited except where Rule 1:16-1 provides good
cause to do so, and then only in the presence of counsel. Generally, discussions between the trial court and jurors,
without the presence of counsel, are inappropriate and improper during and after trial. (pp. 10-11)

2. Rule 1:2-1, which controls judge and jury interactions during the pendency of trial, provides that “[a]ll trials,
hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences . . . and
appeals shall be conducted in open court unless otherwise provided by rule or statute.” However, once the jury has
begun to deliberate, communications between the judge and jury, without the presence of counsel, are improper.
While not every such communication that may occur between a trial court and a jury during deliberations requires
reversal of the jury’s verdict, such interactions have been viewed by New Jersey’s courts with disapproval. (pp. 12-

1
14)

3. In Ertle v. Starkey, 292 N.J. Super. 1 (App. Div. 1996), following the denial of the plaintiffs’ motion for a
judgment notwithstanding the verdict, the judge informed counsel that he would be talking with the jury informally
about their experience as jurors, on the record, but not in the presence of the parties or their counsel. When
plaintiffs’ counsel requested permission to listen to the judge’s conversation with the jury, the judge denied the
request. On appeal, the plaintiffs argued that the conversation with the jurors should not have been conducted in the
absence of counsel and that the judge violated the Code of Judicial Conduct by speaking to the jury. While the
panel affirmed the trial court judgment, it noted that judges should refrain from such interaction so as to avoid
allegations of judicial bias. Similarly, in State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006), after the
defendant filed a motion contending that a juror’s attempt to communicate concerns about deliberations warranted a
new trial, the judge spoke to the juror off the record and without the knowledge or presence of any counsel. On
appeal, the panel disapproved of the trial judge’s communication with the juror, stating that the absence of any
recording of the conversation precluded the State and the defendant from securing a full understanding of what had
transpired. (pp. 14-17)

4. The Code of Judicial Conduct urges judges to perform the duties of judicial office impartially and diligently, and
states that a judge should neither initiate nor consider communications concerning a pending or impending
proceeding outside of the presence of counsel. As this case demonstrates, the issue of post-verdict communications
between a trial court and jurors, outside of the presence of counsel, calls for an unambiguous rule. Such
conversations are incompatible with our system of open and public court proceedings, in which parties’ interests are
protected through their presence and that of their counsel. Therefore, as part of its constitutional supervisory
authority over the conduct of civil and criminal trials, the Court henceforth prohibits post-verdict communications
between a trial judge and jurors outside of the presence of counsel. To the extent that judges wish to thank jurors for
their invaluable service to the public trial process in which they have just participated, that should be done in open
court in the presence of counsel. (pp. 18-20)

5. Despite the general disinclination to allow post-verdict inquiry of jurors, Rule 1:16-1 does permit a limited
inquiry into the events surrounding the jury’s decision to prevent injustice. Such inquiry is only permitted where a
good cause showing is made that the jury’s decision was tainted by misconduct. A showing of good cause includes
information that is communicated to jurors – by another juror or by an outsider – that is extraneous to the issues the
jury is deciding and would be sufficiently prejudicial to warrant a new trial if considered by the jury. Any
investigation must be limited to the effect of the improper extraneous matter and should not include probing the
mental processes of the jurors. (pp. 20-22)

6. Here, because there was no public inquiry of the juror, the record is unacceptably sparse. The way to properly
handle such an inquiry depends on the individual juror’s credibility. It also depends on the juror’s answers to
questions about the comment, what the juror may have said to other jurors, and what those jurors themselves might
have expressed about the administration of the oath to Husain. However, all that is contained in the present record is
the judge’s comments during colloquy with counsel as part of the post-verdict motion practice. Under these
circumstances, the Court is compelled to remand this matter for further proceedings to allow a proper inquiry to be
conducted by the judge to whom this matter will be assigned on remand. A new judge must consider afresh the
import of the juror’s observation and comment, along with all other relevant factors bearing on whether a Rule 1:16-
1 formal inquiry is warranted. (pp. 22-23)

7. The Court finds the current status of this matter troubling, given the amount of time that has passed since trial, the
size of the verdict, and the fact that the problematic posture of this matter would have been avoided by seeking relief
under Rule 1:16-1 by way of a motion for a new trial, timely filed when the trial had more recently occurred.
Therefore, the Court declines to presume that prejudice occurred. All concerns appropriate to a Rule 1:16-1
assessment must be factored into the court’s application when considering the extraordinary remedy of a grant of a
mistrial. The court on remand is instructed to engage in a practical and efficient means of illuminating the facts that
have been presented on appeal. (pp. 23-24)

As to the limited issue considered in this appeal as of right, the matter is REMANDED to the trial court for
proceedings consistent with this opinion. In all other respects, the judgment of the Appellate Division is
AFFIRMED.

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 CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-34 September Term 2013
072425

TOMIKIA DAVIS,

Plaintiff-Respondent,

v.

ABBAS HUSAIN, M.D.,

Defendant-Appellant.

Argued September 24, 2014 – Decided December 23, 2014

On appeal from the Superior Court, Appellate
Division.

Lynda M. Yamamoto argued the cause for
appellant.

Deborah L. Mains argued the cause for
respondent (Costello & Mains, attorneys).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This appeal addresses a trial judge’s post-verdict ex parte

discussion with the jury. During the discussion, one juror

commented about a witness’s conduct when the witness took the

oath prior to testifying. Counsel were informed of the comment.

Concerns about the substance of the comment, as well as how it

should have been handled, arose during post-verdict motion

practice; those same concerns divided the Appellate Division

majority and dissent in this appeal as of right.

1
 Notwithstanding prior discouragement of such post-verdict

ex parte discussions between a trial judge and jurors, the

practice persists, as this matter demonstrates. To bring an end

to such practices, we hold that under no circumstances may post-

verdict discussions occur between the court and discharged

jurors, unless those discussions are part of a hearing ordered

on good cause shown pursuant to Rule 1:16-1. For the reasons

that follow, we remand this matter for further proceedings.

I.

The trial in this matter focused on plaintiff Tomikia

Davis’s claims of sexual harassment advanced against her former

employer, defendant Dr. Abbas Husain.

In November 2007, Davis filed a complaint against Husain,

as well as her other employer, Dr. Mira Kheny, with whom Husain

shared medical office space. The complaint alleged violations

of New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-

1 to -49, based on hostile work environment, sexual harassment,

and retaliation claims. Husain and Kheny filed separate

answers; Kheny subsequently settled with Davis.

The trial on the claims against Husain largely turned on

credibility. Davis testified and described the alleged

instances of harassment; Husain testified and denied each such

incident. Husain also produced co-workers who claimed that they

neither saw any incidents occur nor heard Davis complain that

2
they had occurred. In particular, the following evidence was

adduced at trial.

Husain conducted a private medical practice located in

Merchantville, New Jersey, where he rented out a portion of his

office space to Kheny for her separate medical practice. The

doctors shared a waiting area, but maintained separate exam

rooms, reception areas, and file storage space.

In March 2005, Kheny hired Davis as a full-time medical

assistant. In addition, Davis cleaned Kheny’s office on a part-

time, one-day-a-week basis. Husain also hired Davis, on a part-

time basis, to clean his office space once a week and to

substitute as his medical assistant when Husain’s assistant was

unable to work.

According to Davis, Husain’s sexually harassing conduct

began with sexual comments. She testified that after she had

been working for both Kheny and Husain for approximately six

months, Husain approached her one day while she was working at

her desk. He asked for help in finding him a date, adding that

he liked women with large breasts. Davis replied that she did

not help people find dates and walked away, ending further

discussion. Davis stated that she did not believe that there

was any supervisor to whom she could complain who “ha[d] the

power to discipline [Husain]” and she feared losing her job if

she complained. A few months later, Husain made another comment

3
about women’s breasts to Davis. Davis testified at trial that

she avoided Husain as much as possible after that.

According to Davis, Husain made yet another sexually

harassing statement to her when he uttered unsolicited comments

about the vaginal moisture of women of different ethnicities.

Davis testified that she found the experience “humiliating” and

that it “scared” her because “it was the third time [and she]

just didn’t know what to do.”

The final straw came in June 2006 when, according to Davis,

she was subjected to an instance of unwanted touching. She

testified that while she was filing papers, Husain placed his

hand on her buttocks. She turned to confront him and “told him

not to do that.” Husain allegedly responded, “calm down, we

play like that,” to which she replied, “I don’t play like that.”

According to Davis, she was upset and Husain tried to calm her

down as she gathered her belongings to leave. She stopped

working at the doctors’ office shortly afterward. This lawsuit

followed.

Importantly for purposes of this appeal, when Husain was

sworn in prior to giving his testimony he did not place his left

hand directly on the Bible for reasons that were not addressed

at the time of trial.1 He did raise his right hand and speak the

1 Husain’s certification, submitted during post-verdict motion
practice, indicates that Husain’s action was based on his
4
oath. The jury returned a verdict in favor of Davis in the

amount of $12,500.

After the verdict was rendered and the jury was discharged,

but before post-trial motions were argued and the judgment was

entered, the trial judge conducted an ex parte discussion with

the jurors, which was not recorded. According to the judge, one

juror noted during that discussion that she was surprised that

defendant had not placed his hand on the Bible before he

testified. The judge did not make a record of the juror’s

observation, but he did inform counsel as later events reveal.

Post-trial motions were filed by both parties. Davis filed

a motion to enter judgment and fix fees, costs, and interest.

She also filed a motion for a trial on punitive damages. Husain

filed a motion for a remittitur, arguing among other things that

Davis was not a prevailing party because she had commented

during her testimony that she was not concerned with whether she

was awarded any monetary damages on her claim. A certification

by Husain filed in support of that motion by Husain’s trial

counsel included a brief reference to the juror’s observation.

At oral argument on the remittitur motion, the trial judge

expressed surprise that information he had apparently provided

religious beliefs. He states that it is his “religious belief
that the left hand should never be placed on a holy book.” He
also states that he is “of Indian descent and the left hand is
not used for any official purpose because of our culture.”
5
counsel “in confidence” would end up in a certification and as

part of the trial record.

THE COURT: What you’re talking about is my
sharing with the lawyers in confidence the
comment that a juror made, when I spoke with
the jury, expressing her surprise that your
client didn’t actually touch the Bible when he
swore to tell the truth.

. . . .

. . . [T]he fact -- the fact that -- by way of
what I view as my continuing responsibility to
educate myself and educate the bar, I shared
with counsel the fact that one of the jurors,
as we were leaving, mentioned that she noticed
that he didn’t touch the Bible. I am not a
witness. There was no one else on the jury
that was affected by that, nor did anyone
shake their heads, nor did anyone on the jury
indicate, oh, yeah, I saw that, too, nor was
there any indication that anybody else noticed
that, or that it was discussed in jury
deliberations.

I am surprised that comment that I made out of
my continuing concern for education winds up
in a brief in a certification. I’m going to
rule on all these applications, and then
counsel can do with my rulings what they wish.

. . . .

. . . [Defense counsel], do you want to file
a separate motion for a new trial, or do you
want the Court to address is [sic] now?

. . . .

[DEFENSE COUNSEL]: Well, I was trying not to
bring the issue up in the papers. I only
wanted Your Honor to know why he didn’t touch
the Bible, and that’s why I didn’t bring it up
in that motion. If that’s clearly on the table
I think --

6
 THE COURT: I mean, to me it’s clearly on the
table.

[DEFENSE COUNSEL]: Yes. And, quite frankly,
Judge, I feel --

THE COURT: What would be the basis for seeking
a new trial? I’m not making you do this right
now. You can go back to your office and think
about it and file another motion. I don’t
want to -- under the circumstances I don’t
want to put you in that kind of box.

. . . .

[DEFENSE COUNSEL]: . . . I had no idea that
[Husain] had a problem with his left hand,
although I understand that it was out of
respect for the holy books that he didn’t
touch the book.

THE COURT: Well, that’s what his affidavit
says. If that’s your basis for granting a new
trial the Court’s ruling is it has nothing to
do with any of the decisions made by the jury,
it has nothing to do with the testimony. It
was not part of the trial. And if that’s the
sole basis there is no basis for a new trial.

. . . .

I’m not going to consider this as the formal
application for a new trial. I’ll consider
this -- if you want to file something, file
something. I’m not stopping you from filing
something, but I’m ruling that that as a basis
for a new trial is insignificant,
unsubstantial, didn’t have the capacity to
cause injustice, doesn’t shock the conscience.

The court denied Husain’s motion for remittitur, finding

the amount allocated in the verdict fair in light of the

evidence, “giving no regard for the comment made by one juror

7
. . . about noticing that Dr. Husain didn’t touch the Bible,”

and noting that “that [was] not part of their considerations.”

The court also adjusted the counsel fees awarded to Davis and

denied Davis’s separate motion for a trial on punitive damages.

Husain never filed a motion for a new trial as far as the record

discloses. After judgment was entered, defendant appealed,

raising several arguments. Relevant to the limited issue in

this appeal as of right, defendant argued that the trial judge

erred by failing to declare a mistrial on the basis of the

juror’s comment about defendant and the Bible.

In an unpublished opinion, a majority of the Appellate

Division affirmed the verdict. The panel held that no manifest

injustice inhered in the juror’s observation and comment,

determining that the remark does not express clear and

unambiguous evidence of bigotry and noting that the trial judge

viewed the jury’s verdict as consistent with the evidence

adduced at trial. Thus, the majority held, the extraordinary

remedy of a new trial was not warranted.

The dissenting judge maintained that the trial judge had

violated the Code of Judicial Conduct and that the juror’s

observation was sufficient to warrant a new trial. The dissent

suggested that, rather than assume that no harm to defendant

flowed from the juror’s observation, the assumption should be

that there was harm. The dissent also asserted that a new trial

8
is the only feasible remedy because the verdict was rendered too

long ago to obtain meaningful, determinative information bearing

on the jurors’ decision making. Finally, the dissent stated

that reversal would send a strong message of deterrence in

respect of the inappropriate practice of ex parte communications

with jurors.

II.

Based on the dissent in the Appellate Division, defendant

Husain contends that a new trial is warranted due to the trial

court’s failure to refrain from ex parte communication with the

jurors, to make a record of the information the court learned

during that ex parte communication, and to take steps to cure

the court’s errors by conducting an investigation into the role,

if any, that the juror’s observation had in assessing Husain’s

credibility. Plaintiff, on the other hand, emphasizes the high

standard that must be met in order to grant a mistrial or even

to engage in post-judgment inquiry into a juror’s thought

processes. Davis maintains that nothing that occurred in this

matter merits those forms of extraordinary relief.

III.

At the center of the errors found by the dissenting judge

of the panel, highlighted in Husain’s arguments in this appeal,

is the problematic informal post-judgment interaction that

occurred between the trial court and the jurors. Hence we begin

9
by turning to the safeguards in place governing interactions

with jurors after a verdict.

A.

Pursuant to Rule 1:16-1,

[e]xcept by leave of court granted on good
cause shown, no attorney or party shall
directly, or through any investigator or other
person acting for the attorney, interview,
examine, or question any grand or petit juror
with respect to any matter relating to the
case.

Calling back a jury for questioning following discharge is an

“extraordinary procedure,” to be utilized “only upon a strong

showing that a litigant may have been harmed by jury

misconduct.” State v. Athorn, 46 N.J. 247, 250 (1966), cert.

denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966);

see also State v. Harris, 181 N.J. 391, 503 (2004), cert.

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005); State v. Koedatich, 112 N.J. 225, 288 (1988). That

exacting standard balances the litigant’s interest in ensuring

an impartial jury with the importance of keeping deliberations

secret. See Harris, supra, 181 N.J. at 503.

Secrecy in deliberations “encourage[s] each juror to state

his thoughts, good and bad, so that they may be talked out.

‘Freedom of debate might be stifled and independence of thought

checked if jurors were made to feel that their arguments and

ballots were to be freely published to the world.’” State v.

10
LaFera, 42 N.J. 97, 106 (1964) (quoting Clark v. United States,

289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1933)).

Generally, discussions that jurors have while deliberating

remain shielded from litigants, attorneys, and the public eye,

and may not provide grist for overturning the jury’s verdict.

Athorn, supra, 46 N.J. at 250-51; see also State v. LaRocca, 81

N.J. Super. 40, 42-45 (App. Div. 1963) (affirming denial of

defendant’s motion to question jury post-verdict because “no

credible information” was presented “which would indicate that

improper, extraneous factors were injected into the jury room”).

Similarly, a judge’s ability to inquire of jurors after

trial is limited except where Rule 1:16-1 provides a good-cause

basis to do so, and then only in the presence of counsel. Ex

parte discussions between the trial court and jurors are

inappropriate and improper, both during trial and after the jury

is discharged. Rule 1:16-1 contemplates public proceedings

based on good cause if, and only if, a post-verdict inquiry of a

juror is shown to be warranted. It does not authorize post-

verdict ex parte communications by judges. Inquiring into any

juror’s thought process is a significant intrusion into the

deliberative process. The rigors of determining whether good

cause exists for such an intrusion militate against any

informality in the manner by which juror information is

disclosed.

11
 During the pendency of the trial, the rules speak with

crystal clarity. Rule 1:2-1 controls judge and jury

interactions, and it provides that “[a]ll trials, hearings of

motions and other applications, pretrial conferences,

arraignments, sentencing conferences . . . and appeals shall be

conducted in open court unless otherwise provided by rule or

statute.”

Once the jury is in the midst of deliberations, ex parte

communications between judge and jury are improper. Jury

inquiries during deliberations necessitate the involvement of

counsel; similarly, judicial responses or communications with

the jury require counsel’s presence. See, e.g., State v.

Morgan, 217 N.J. 1, 15 (2013) (finding ex parte discussions

between judge and jury in jury room “plainly improper”); State

v. Gray, 67 N.J. 144, 148-49 (1975) (finding error in trial

court’s answering of question from deliberating jury without

consulting counsel); State v. Auld, 2 N.J. 426, 431-32 (1949)

(finding trial judge’s written communication with deliberating

jury improper); State v. Basit, 378 N.J. Super. 125, 130-34

(App. Div. 2005) (declaring trial court’s ex parte, unrecorded

response to jury question erroneous); State v. Brown, 275 N.J.

Super. 329, 331-34 (App. Div.) (finding court to have acted

improperly when clarifying jury’s written question without

having counsel present), certif. denied, 138 N.J. 269 (1994);

12
Guzzi v. Jersey Cent. Power & Light Co., 36 N.J. Super. 255, 264

(App. Div.) (holding judicial officer’s ex parte communication

with jury, delivered on behalf of trial judge, improper),

certif. denied, 19 N.J. 339 (1955). Many pitfalls are

associated with the practice of allowing ex parte communications

between a judge and a deliberating jury:

[I]t is difficult to contain, much less to
anticipate, the direction the conversation
will take at such a meeting. Unexpected
questions or comments can generate unintended
and misleading impressions of the judge’s
subjective personal views which have no place
in his instruction to the jury -- all the more
so when counsel are not present to challenge
the statements.

[United States v. U.S. Gypsum Co., 438 U.S.
422, 460, 98 S. Ct. 2864, 2885, 57 L. Ed. 2d
854, 884 (1978).]

While not every ex parte communication that may occur

between a trial court and a jury during deliberations has

required reversal of the jury’s verdict, we recently explained

in a criminal appeal setting that,

(1) if the record affirmatively reveals that
the defendant was prejudiced, reversal is
required; (2) if the record does not show
whether the ex parte contact was prejudicial,
prejudice is presumed; and (3) if the record
affirmatively discloses “that the
communication had no tendency to influence the
verdict,” the outcome should not be disturbed.

[Morgan, supra, 217 N.J. at 12 (quoting Auld,
supra, 2 N.J. at 432).]

B.

13
 To the extent that ex parte judge-juror interactions post-

verdict have been examined in this state, such interactions have

been viewed with disapproval. Two published Appellate Division

cases have expressed clear disapproval of the practice.

In Ertle v. Starkey, 292 N.J. Super. 1, 5-6 (App. Div.

1996), a slip-and-fall negligence action, the jury returned a

no-cause-of-action verdict, finding that the plaintiff was

eighty percent liable for his injuries. Following the verdict,

the plaintiffs moved for a judgment notwithstanding the verdict,

which the court denied. Ibid. Following the denial, the judge

informed counsel that he would be talking with the jury

informally about their experience as jurors, on the record, but

not in the presence of the parties or their counsel. Id. at 6.

The plaintiffs’ counsel requested permission to listen to the

judge’s conversation with the jury, which the judge advised

against, alluding to the likelihood that the plaintiffs would be

moving for a new trial in the future. Ibid. While talking to

the jury, “one or more of the jurors indicated that they would

have liked to have been able to ask questions during the trial,

such as whether there was any other person that had fallen on

the stairs at issue.” Ibid. Other jurors expressed skepticism

about the plaintiffs’ claim. Ibid.

On appeal, the plaintiffs argued that the conversation with

the jurors should not have been conducted in the absence of

14
counsel and that the judge violated Canon 3A(6) of the Code of

Judicial Conduct by speaking to the jury. Ibid. In affirming

the trial court judgment, the Appellate Division found no

violation of the Code of Judicial Conduct, reasoning that

[t]he judge was neither conducting a hearing
nor seeking advice on any pending legal
matter. Inasmuch as the jury had completely
discharged its function, the case was over as
far as it was concerned. Indeed, the record
of the colloquy with the jurors demonstrates
that the judge was simply trying to enlighten
the members of the jury as to the legal
proceeding in which they had been asked to
participate as part of the judicial process.
Although we do not endorse the procedure used
here, we can fully appreciate that in many
situations this is desirable in order to help
jurors to understand the nature of legal
proceedings, which thereby promote their
confidence in the judicial system. By no
means was this, nor should it have been, a
formal judicial inquiry into trial matters
warranting the presence of counsel.
Nonetheless, we are of the view that trial
judges should refrain from such interaction in
the future so as to avoid the type of
allegations of judicial bias that have been
made in this appeal or other claimed grounds
for appeal.

[Id. at 7.]

The panel further determined that the trial judge’s discussion

with the jury was not clearly capable of producing an unjust

result because there was no indication that the conversation had

an “effect on the trial judge’s impartiality or his subsequent

ruling with respect to the new trial motion.” Id. at 8.

15
 Post-verdict ex parte communication between judge and jury

was considered again, a decade later, in a criminal context.

There, similar to the Ertle court, the appellate panel could not

conclude from the record before it that the challenged

communication affected the defendant’s due process rights. In

State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006), the

defendant was convicted of third-degree drug offenses and

resisting arrest. Id. at 151-52. Shortly after the jury

rendered the verdict, a juror left a message for the assistant

prosecutor, who forwarded the message to an investigator. Id.

at 155. The investigator contacted the juror and advised him

that the conversation was being taped and that the assistant

prosecutor could not speak to him. Ibid. The investigator

informed the juror that the fact of the call would be brought to

the attention of “the appropriate authority”; in fact, the trial

court was informed of the incident. Ibid.

After the defendant in Walkings filed a motion contending

that the juror’s attempt to communicate concerns about

deliberations warranted a new trial, ibid., the judge spoke to

the juror “off the record” and without the knowledge or presence

of any counsel, id. at 155-56. During oral argument on the

defendant’s motion, the judge’s conversation with the juror was

revealed, apparently for the first time, when the court stated:

16
 THE COURT: As to the juror--my telephone
conversation with that juror really just was
the juror recounting a dynamic of what jury
deliberations are all about, a concern that
there was--at least some concern on the part
of that juror that a result would not be
reached, and, of course, concluded with the
fact that there was a unanimous verdict
ultimately. There is no showing of any
tampering of any kind. That’s not even
suggested by any stretch of the imagination.
The phone call to the prosecutor said nothing
about that. This was simply, perhaps, someone
inexperienced in the experience of jury
deliberations who was retelling their account,
so it didn’t even border on the kind of
information that I thought would require the
Court to expose the juror and the jury
deliberative process to scrutiny, and so for
that reason I took no further action.

[Id. at 157.]

The Appellate Division examined the entire colloquy from the

argument, noted that the record did not reveal the juror’s

statements or specific concerns about the deliberations, and

concluded that the matter needed to be remanded for “a further

exploration of the issues, including the creation of a record

that would disclose all the communications between and among the

juror, the prosecutor’s office and the trial judge.” Id. at

157-58.

In addition, the panel in Walkings disapproved of the trial

judge’s ex parte communication with the juror, stating that the

absence of any “recording of the conversation precluded the

State and the defendant from securing a full understanding of

17
what transpired.” Id. at 158. The panel noted that “the fact

that the conversation occurred out of the presence of the

defendant and his counsel may have -- depending upon whether the

remand proceedings can provide a sufficient re[-]creation of

what occurred -- imperiled defendant’s due process rights.”

Ibid. Notwithstanding that the existing state case law only

addressed communications with jurors during the course of

deliberations, ibid., the panel stated that it “[saw] no

principled reason for permitting ex parte communications

concerning the jury’s deliberations once a verdict has been

rendered and the jury discharged,” id. at 158-59.

With that experience in mind, we turn to the present

appeal.

IV.

A.

Generally stated, avoiding the aura of irregularity that

arises from ex parte judge-juror interactions has always been a

goal in and of itself. Canon 3 of the Code of Judicial Conduct

exhorts judges to “perform the duties of judicial office

impartially and diligently,” and specifically states, under

adjudicative responsibilities identified in Canon 3A(6), that

“[a] judge should accord to every person who is legally

interested in a proceeding, or that person’s lawyer, full right

to be heard according to law, and, except as authorized by law,

18
neither initiate nor consider ex parte or other communications

concerning a pending or impending proceeding.” As starkly

raised in this case, the issue of post-verdict ex parte

communications between a trial court and jurors calls for an

unambiguous rule that provides clear guidance to judges and

litigants.

Our holding is simply stated. Post-verdict ex parte

communication between the trial court and jurors cannot be

countenanced. The informality of such encounters, however

benign their intended purpose, creates the possibility for the

innocent remark or question to spark an attempt to plumb jurors’

decision-making processes. Ex parte inquiries prevent the

proper presentation of information otherwise subject to the

rigorous scrutiny of a Rule 1:16-1 formal inquiry. The asserted

salutary purposes of “education” of the bench and bar cannot

justify this ex parte communication practice. “Off the record”

conversation between the judge and jury is incompatible with our

entire system of open and public court proceedings, in which

parties’ interests are protected through their presence and that

of their counsel.

We therefore prohibit, as part of our constitutional

supervisory authority over the conduct of civil and criminal

trials in this State, ex parte post-verdict communications

between a trial judge and jurors. N.J. Const. art. 6, § 2, ¶ 3;

19
Pasqua v. Council, 186 N.J. 127, 152 (2006) (“Article VI,

Section 2, Paragraph 3 of the New Jersey Constitution invests

the Supreme Court with the authority to make rules for the

‘practice and procedure’ of the courts.”); see also State v.

Lazo, 209 N.J. 9, 28 (2012) (relying on “supervisory powers

under Article VI, Section 2, Paragraph 3 of the State

Constitution” in mandating certain trial procedure); State v.

Henderson, 208 N.J. 208, 254 (2011) (requiring eyewitness

identification procedure pursuant to authority granted by

Article VI, Section 2, Paragraph 3 of New Jersey Constitution).

This bright-line directive shall provide guidance henceforth for

all judges. To the extent that judges wish to thank jurors for

their invaluable service to the public trial process in which

they have just participated, that should be done in open court

in the presence of counsel.

B.

Turning to the matter at hand, we begin by noting that

despite the general disinclination to allow post-verdict inquiry

of jurors, exceptions perforce exist. Rule 1:16-1 recognizes

the public interest in maintaining secrecy in jury

deliberations, but authorizes action to avoid “‘gross injustice

by permitting inquiry into the events surrounding the jury’s

decision only where’” a good cause showing is made that the

jury’s decision was tainted by misconduct. State v. R.D., 345

20
N.J. Super. 400, 405 (App. Div. 2001) (quoting Pressler, Current

N.J. Court Rules, comment 1 on R. 1:16-1 (2002)).

“Good cause” under the rule refers to some information that

enters jury deliberations and has the capacity for prejudice.

See State v. Loftin, 146 N.J. 295, 381 (1996); see also State v.

Kociolek, 20 N.J. 92, 100 (1955). A showing of good cause

includes information that is communicated to jurors -- by

another juror or by an outsider -- that is extraneous to the

issues that the jury is deciding, and that would be sufficiently

prejudicial to warrant a new trial if such information were

considered by the jury. See Kociolek, supra, 20 N.J. at 100.

Thus, one example is when a juror interjects into the jury’s

collective deliberations facts, correct or not, that are outside

the trial record. See Athorn, supra, 46 N.J. at 251-52 (citing

Brandimarte v. Green, 37 N.J. 557 (1962); Kociolek, supra, 20

N.J. at 92).

An indication that jurors have used improper information in

deliberations may require an inquiry into the information’s

effect on the jury’s decision making. See Brandimarte, supra,

37 N.J. at 561-63 (finding trial judge prematurely denied motion

for new trial where adequate investigation was not performed

into extent defendant’s lack of insurance coverage was

considered in deliberations). Also, an indication that a

juror’s comments in the jury room manifested unlawful bigotry

21
against a defendant can provoke a similar need for inquiry by

the trial judge. See Athorn, supra, 46 N.J. at 251-52 (citing

State v. Levitt, 36 N.J. 266 (1961)). Either set of

circumstances can be the basis for overturning a jury verdict.

Id. at 251.

That said, any investigation must be narrow to serve the

interest in maintaining jury-deliberation secrecy: “[the]

inquiry is limited to the effect of the improper extraneous

matter and [does] not include probing the mental processes of

the jurors.” State v. Onysko, 226 N.J. Super. 599, 603 (App.

Div. 1988) (citing Brandimarte, supra, 37 N.J. at 563-65). If a

court determines that there is good cause to question the jury,

this Court has emphasized that it is the trial judge who must be

charged with questioning the jury because “[p]robing into a jury

room is too delicate a task to be carried out in the framework

of adversary proceedings.” Brandimarte, supra, 37 N.J. at 565;

see also Levitt, supra, 36 N.J. at 271 (“Because of the delicacy

of the questioning of jurors, we think the proper practice would

be for the trial judge to take the testimony of the jurors

himself in the presence of counsel, rather than expose jurors to

questioning by others.”).

In this matter, the record for review is unacceptably

abridged. There was no inquiry of the juror on the record, or

inquiry of any of the other jurors if their decision making was

22
impacted by the individual juror’s actions or comments. The way

to properly handle such an inquiry depends on the individual

juror’s credibility. It also depends on her answers to

questions about her comment and what, if anything, she said to

other jurors, or what those jurors themselves might have

expressed about the administration of the oath to Husain.

However, all that is in the present record is the judge’s

comments during colloquy with counsel as part of the post-

verdict motion practice. Under these circumstances, we are

compelled to remand this matter for further proceedings to allow

a proper inquiry to be conducted by the judge to whom this

matter will be assigned on remand. A new judge must consider

afresh the import of the juror’s observation and comment, along

with all other relevant factors bearing on whether a Rule 1:16-1

formal inquiry is warranted.

It is an understatement that the present status of this

matter is troubling. We note the considerable amount of time

that has passed since trial, the size of the verdict, and the

fact that the present problematic posture of this matter would

have been avoided by seeking relief under Rule 1:16-1 by way of

a motion for a new trial, timely filed when the trial had more

recently occurred. We are reluctant to engage in a presumption

of prejudice under these circumstances. All concerns

appropriate to a Rule 1:16-1 assessment must be factored into

23
its application when considering the extraordinary remedy of a

grant of a mistrial. See State v. Winter, 96 N.J. 640, 647-48

(1984). In conclusion, we trust that the court on remand will

engage in a practical and efficient means of illuminating the

murky facts that have been presented on appeal. Our holding

today prohibiting ex parte post-verdict communications between

trial judge and jurors is intended to prevent the repetition of

circumstances such as these by keeping exchanges public, on the

record, and in the presence of counsel.

V.

The matter is remanded for further proceedings solely on

this issue. In all other respects, the Appellate Division

judgment is affirmed. We do not retain jurisdiction.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.

24
 SUPREME COURT OF NEW JERSEY

NO. A-34 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court

TOMIKIA DAVIS,

Plaintiff-Respondent,

v.

ABBAS HUSAIN, M.D.,

Defendant -Appellant.

DECIDED December 23, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY

CHECKLIST REMAND/AFFIRM
CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X
7

1