On 8 July, Amber Heard’s attorneys asked Judge Penney Azcarate -- who presided over the defamation trial opposing the actor and her ex-husband Johnny Depp in Virginia for six weeks -- to throw out the verdict.
Heard’s legal team asked for a new trial, arguing that one of the six jurors who ruled on the case was not who they were supposed to be. In fact, they allege, that person had never even been summoned for jury duty.
According to the filing, Juror 15, “was not the individual summoned for jury duty” ahead of the trial on 11 April 2022, “and could not have properly served on the jury at this trial”. Thus, the filing argues, “a mistrial should be declared and a new trial ordered.”
The filing raises questions as to whether the proceedings were incorrectly set up from the start, which Heard’s team is arguing, or whether the alleged issue is immaterial – which Depp’s team is arguing.
A verdict in Depp v Heard was announced on 1 June 2022. The jury of seven people ruled overwhelmingly in Depp’s favor, having found that Heard defamed him on three statements. Jurors also found that Depp defamed her in one of three statements previously made by one of his lawyers, which were highlighted in Heard’s countersuit. Depp was awarded $10.35m in damages, while Heard was awarded $2m in damages.
What is the alleged issue at hand?
The person who was meant to serve on the jury, according to the memorandum filed by Heard’s team, would have been 77 years old at the time of the trial. Instead, someone with the same last name, residing at the same address, but of a different age, served on the jury. That person was 52 years old at the time of the proceedings.
“As the court no doubt agrees, it is deeply troubling for an individual not summoned for jury duty nonetheless to appear for jury duty and serve on a jury, especially in a case such as this,” the filing notes. “This was a high-profile case, where the fact and date of the jury trial were highly publicized prior to and after the issuance of the juror summonses.”
It goes on to argue that “Ms Heard has a right to rely on the basic protection … that the jurors in this trial would be individuals who were actually summoned for jury duty”, that her due process was “compromised”, and that “a mistrial should be declared, and a new trial ordered.”
Depp’s lawyers replied to the request for a new trial on Monday 11 July, arguing that Heard and her team were provided with a jury list in April -- before the proceedings began in earnest. They also argue that Heard suffered “no unfair prejudice” because the younger person who served on the jury instead of the 77-year-old who had been summoned for jury duty “was qualified to serve as a juror in Fairfax County”.
What are the rules for jury selection?
In Virginia, “potential jurors are selected randomly by the jury commissioners using lists designated by the courts, such as the voter registration list and the driver’s license list,” according to the jury handbook published by Virginia courts. “... [The] selection method is designed to produce a cross section of the community. Men and women over 18 years of age and from all walks of life have an equal opportunity to be called for jury service.”
It is mandatory to respond to a summons for jury duty, and the penalty for not doing so is being charged with contempt of court.
What have lawyers said about Heard’s challenge to the verdict?
Mitra Ahouraian, an entertainment attorney in Beverly Hills who represents actors, directors, producers, and musicians, was skeptical about the request for a mistrial, telling The Independent: “Amber Heard’s lawyers have argued that the fact that one of the jurors was not who he said he was resulted in a violation of her due process rights, but nowhere in the motion do they indicate how her due process rights were violated, or even how this fact affected the trial.”
Ahouraian also argued that Virginia laws “specifically say that the parties are responsible for verifying the accuracy of the name, age, address, occupation, and employer of each panel.”
“They can’t claim [Heard’s] due process rights were violated when the statute clearly says it is their responsibility to verify this information,” she added. “I find it hard to believe that they only now realized what was supposed to be a 77-year-old man was actually a 52-year-old man.”
According to Ahouraian, the fact that one of the jurors was not the person who was summoned for jury duty is not in itself ground for a mistrial.
“The statute specifically states that any error in the information about the jury panel is not grounds for a mistrial and puts the onus on the parties (and their lawyers) to verify the accuracy of this information,” she told The Independent.
Robert Byrne, a civil trial attorney based in Virginia, expressed doubt that the memorandum filed by Heard’s team would succeed in getting the verdict thrown out and a mistrial declared, in an explainer video he shared on YouTube.
“I don’t think this really changes anything, for three reasons,” he said, explaining first of all that per Virginia law, a defendant is entitled to a jury of their peers, which would be “a jury of fellow citizens.”
“If this person was an actual citizen of the state of Virginia, then I don’t think it really matters,” he said.
Secondly, Byrne said the juror exchange does not amount to a constitutional violation in this case. “So long as they are citizens, then that is something that would satisfy any constitutional issues that could arise,” he said.
Thirdly, Byrne said that Virginia law provides that a defendant must show that they suffered prejudice due to an irregularity in order for that irregularity to provide a basis for a mistrial.
He referred to a part of the Virginia Code that states: “... Unless it appears that [an] irregularity was intentional or that the irregularity or disability be such as to probably cause injustice in a criminal case to the Commonwealth or to the accused and in a civil case to the party making the objection, then such irregularity or disability shall not be cause for summoning a new panel or juror or for setting aside a verdict or granting a new trial.”
Julie Rendelman, a criminal defense attorney based in New York, focused on this aspect too, telling Entertainment Tonight: “Did [the two individuals] intentionally lie? If it’s simply a mistake, that does not rise to any claim that would require a mistrial.”
