North Minneapolis man granted new trial after evidence federal juror made racial remarks

In a rare reversal, a federal judge has ordered a new trial for a north Minneapolis man convicted on gun charges, finding that jurors likely focused more on his race than the evidence in rendering a guilty verdict.

Five years after Michael Allen Smith's conviction, U.S. District Judge Susan Richard Nelson agreed to re-examine Smith's case after the jury foreman from his trial disclosed that another juror had said of Smith, who is black: "you know he's just a banger from the hood, so he's got to be guilty."

The foreman, identified in court papers as D.B., explained that he decided to come forward after reading a newspaper article about the U.S. Supreme Court's March 2017 decision that a jury's verdict can be reconsidered if there is evidence of racial bias during deliberations.

D.B. later testified at an evidentiary hearing that the other juror's remarks during deliberations at the December 2012 trial came 30 minutes before the jury reached its verdict, and he admitted that the statement led him to change his own vote to convict based on Smith's race.

"This is an exceptional case in which a miscarriage of justice may have occurred," Nelson wrote this week in a 34-page opinion that called for a new trial, which will be scheduled at a later date.

Smith, 36, is serving a 15-year sentence at a federal prison in Sandstone, Minn., for convictions on charges of being an armed career criminal and possessing an unregistered firearm. The government relied on testimony from two Minneapolis police officers to link Smith to a shotgun recovered in an alley following a foot chase after the officers encountered Smith while investigating a robbery near his neighborhood in April 2012.

Smith is barred from possessing a firearm based on prior third-degree murder and assault convictions. But no evidence connected him to the shotgun and a forensic expert testified that DNA recovered from it did not match Smith.

After considering Smith's motion for a new trial, and testimony from jurors, Nelson wrote this week that the juror's remarks about Smith had "outsized significance and materiality in this case, as there was no physical evidence linking Smith to the gun."

Shannon Elkins, a federal defender representing Smith, wrote in an earlier motion for a new trial that "in a case that turned on credibility like this one, racism in even one juror is especially problematic."

"Moreover," she wrote, "The affidavits establish that the problematic juror said racially biased statements to all the jurors before the verdict was reached and that he was trying to convince other jurors to vote to convict based on this racist reasoning."

A 5-3 decision by the U.S. Supreme Court last year said that racially biased comments from jurors could violate defendants' constitutional rights to a fair trial and require judicial review. Justices had agreed to take up the case of a Coloradan who found out after his conviction that a juror said he believed he was guilty of sexual assault because he was Mexican.

"The jury is to be a criminal defendant's fundamental protection of life and liberty against race or color prejudice," wrote Justice Anthony Kennedy in a majority opinion that Elkins cited in her motion last year. "Permitting racial prejudice in the jury system damages both the fact and the perception of the jury's role as a vital check against the wrongful exercise of power by the State."

The U.S. Attorney's Office vigorously opposed granting Smith a new trial, filing a 71-page memorandum in February underlining that the court was "in uncharted waters" trying to apply the Supreme Court's recent decision — something that has until now not been taken up in Minnesota or in the Eighth Circuit.

Assistant U.S. Attorney Michael Cheever, in court filings, pointed out that jurors raised no concerns about the statement after the verdict or while later meeting with the judge. D.B. also discussed his experience as a juror on a 2013 Federal Bar Association panel and did not discuss the remark, Cheever also wrote. On Thursday, the U.S. attorney's office declined to comment on Nelson's order, citing the now-pending new trial.

While investigating D.B.'s claim last year, Elkins contacted a second juror, identified as A.J., who also signed an affidavit saying he heard the same juror, W.B., make a comment along the lines of "look, he is a black person with a previous criminal record living in north Minneapolis." D.B. said he and W.B. dominated the debate among the jury and said that he and A.J. were the lone holdouts before W.B.'s comment.

Prosecutors said that, in a phone call last year, W.B. denied making the statements alleged by his fellow jurors. However, the government did not call any witnesses at the December evidentiary hearing in the case.

Cheever argued that D.B.'s memory of the statement was "overly confident," given his initial lack of memory of many details about the trial, including names of the parties involved and crimes charged.

Prosecutors said Elkin's motion for a new trial strained "to inject racism into the accurate and highly relevant observation that Smith, the individual whose credibility was being discussed, had a criminal history."

"We do not expect jurors to speak with the same caution and precision we expect of attorneys," Cheever wrote. "Any reference to a 'banger' or to 'the hood' in the context of this case does not clearly involve racial stereotyping and the terms do not suggest racial animus by the speaker."

Smith will return to a St. Paul federal courtroom in May as he now awaits a second chance to face the charges that have kept him in prison for more than five years. In an interview, Elkins said she had just shared news of Nelson's order with Smith's wife on Thursday, and said she was "very emotional and very happy."

In his affidavit to the court last year, D.B. said he regretted not speaking up when W.B. made his "banger" comment and that his lack of action has weighed on his mind since the verdict. Still, Smith's attorney said Thursday that she admired D.B.'s decision to say something at all.

"I don't think it's ever too late," Elkins said Thursday. "Juries are making decisions to imprison people and I don't think any kind of racism or bias during deliberations can be tolerated."