1—ORDER 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AYISHA ELLIOTT (BROWN), and

QUINTON RICHARDSON-BROWN

Plaintiffs, Case. No. 6:16-cv-00022-MC

v. ORDER

CITY OF EUGENE, OFFICER TREVOR

HART, SERGEANT WILLIAM

SOLESBEE, OFFICER MATHEW 

STROPKO, and OFFICER CLIFFORD 

SITES,

Defendants.

_____________________________

MCSHANE, Judge:

Following a jury verdict in favor of defendants, plaintiffs move for a new trial under 

Federal Rule of Civil Procedure 60 and Federal Rule of Evidence 606(b)(2)(A) due to 

alleged juror misconduct. Nearly five months after the verdict, the Court received a letter 

from a juror. The juror was the lone vote in favor of finding for one plaintiff on one claim.1

That claim was one of excessive force by Sergeant William Solesbee against plaintiff Ayisha 

 

1 The verdict was 8-0 in favor of defendant as to the other claim.
2—ORDER 

Elliott Brown. The letter outlined the juror’s dissatisfaction with the process. Plaintiffs 

move for a new trial based on one sentence in the letter: “Also, on the last day of 

deliberations the jury foreman admitted to performing an experiment at home with his 

mobile phone to determine whether one witness’s testimony could be true.”

When extraneous information has been presented to a jury, a moving party is 

entitled to a new trial if there is “a reasonable possibility that the extrinsic evidence could

have affected the verdict.” Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (quoting 

United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979)). “ Because plaintiffs have not 

demonstrated a reasonable probability that the alleged “experiment” here could have 

affected the verdict, plaintiffs’ motion for a new trial is DENIED.

Based on the sentence in the letter about the foreman’s “experiment at home with 

his mobile phone,” the Court ordered the juror to testify under oath to determine “the 

circumstances of what transpired, the impact on the jurors, and whether or not the 

misconduct was prejudicial.” Bell v. Uribe, 748 F.3d 857, 867 (9th Cir. 2014). At that 

hearing, the Court attempted, perhaps without success, to walk an exceedingly fine line 

between delving into the alleged experiment without inquiring into the nature of the 

deliberations. The Court hoped to conclude, one way or the other, whether the 

“experiment” was in fact extraneous information that could taint the verdict. See Hard v. 

Burlington N. R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989) (“The type of after-acquired 

information that potentially taints a jury verdict should be carefully distinguished from the 

general knowledge, opinions, feelings, and bias that every juror carries into the jury 

room.”).
3—ORDER 

The juror testified that the foreman told the other jurors he was able to record a 

video with his phone even though it had a low battery. According to the juror, prior to the 

“experiment,” the foreman and “several of [the other jurors] talked about questioning 

whether your phone could record on a low battery.” Even assuming the foreman conducted 

an improper extraneous “experiment,” the outcome would not have been different absent 

such an “experiment.” I note the juror testified that even before the “experiment,” several 

jurors “already formed a negative opinion [regarding the testimony concerning the phone 

recording], even though it hadn’t been verified.” The juror confirmed that the negative 

opinion was formed even before the foreman conducted the experiment. 

Additionally, the juror testified that in her opinion, “the jurors had already made up 

their minds even before this conversation [regarding the experiment].” The jurors voted 

before any talk of the experiment and the testifying juror was the lone dissenting vote. In 

the juror’s opinion, no votes changed before or after the experiment. Finally, the juror 

believed the other jurors had made up their minds before the foreman discussed his 

experiment. Given the juror’s testimony, the experiment, even if the discussions transpired 

exactly as she testified to, did not change any votes. As the parties agreed to accept a 

verdict with a single dissenting vote, the experiment did not change the outcome. Before 

the experiment, when the jurors had made up their minds, there was one dissenting vote. 

After discussing the experiment, which did not alter any opinions, there remained that lone

dissenting vote. Because there is not a reasonable possibility that the experiment here 

could have affected the verdict, plaintiffs’ motion for a new trial is DENIED. Dickson, 849 

F.2d 405.
4—ORDER 

Additionally, I find the testimony concerning the phone recording is not as critical to 

plaintiffs’ case as argued by plaintiffs in the motion. Several witnesses testified to the 

events at issue, including Ayisha Elliott Brown and her brother, who testified he attempted 

to record the incident. The jurors heard audio of the incident. With the prevalence of cell 

phones, the Court has little doubt each juror arrived at the courthouse on the first day of 

trial with extensive personal knowledge regarding the workings of their own phones. Given 

that, along with the somewhat tangential aspect of the recording to the claim at issue, it is 

no surprise the dissenting juror herself testified that the discussion of the experiment did 

not change a single juror’s mind about either remaining claim. It is easy, after the fact, to 

point to certain evidence and argue it was critical to one’s case. Plaintiffs argue the jurors 

necessarily believed the witness lied not only about the recording, but about the actions of 

plaintiffs and the officers. That is a stretch. Based on my recollection of the testimony over 

four days of trial, Mr. Richardson’s testimony about his attempt at recording the incident 

was not critical to plaintiffs’ claims. 

Additionally, even if the dissenting juror testified that jurors changed their minds 

following the experiment, that would not per se entitle plaintiffs to a new trial. The 

dissenting juror admitted several months had passed since the trial and that the entire 

experience had been traumatic. Had her testimony been different, the Court would have 

been bound to subpoena the other jurors to hear their testimony on the alleged 

experiment. If that testimony conflicted with the dissenting juror’s testimony—i.e., if the 

Court heard evidence that this discussion was not of an “experiment” but instead on the 

jurors’ general personal knowledge of how phones worked—the Court would have to make 

findings of fact. But the Court feels it has already waded too far into the actual 
5—ORDER 

deliberations. Given the testimony of the dissenting juror, I assume, without deciding, that 

the foreman in fact performed an improper, extraneous experiment on his phone. Because 

it is clear that the experiment did not alter the outcome, plaintiffs’ motion is DENIED.

IT IS SO ORDERED.

DATED this 2nd day of January, 2019.

__________/s/ Michael McShane____________

Michael McShane

United State District Judge