(CN) - Embattled Miami city commissioner and former mayor, Joe Carollo, urged an 11th Circuit panel Tuesday to grant him a new trial after he was ordered to pay $63.5 million in damages to two businessmen.

Carollo argued the trial against him was tainted by unrebutted evidence of jury tampering by the plaintiff's business partner, Zach Bush.

During the trial in 2023, the lower court judge received a note from a juror, reporting she had been followed into the parking garage by Bush, whom she recognized attending the trial on the plaintiff's side. She said Bush followed her into the garage elevator and commented, "I'm following you," encouraged her to look up the case on social media, and warned that "everyone should be careful."

After individually inquiring each of the jurors, the judge determined Bush's contact with the juror, which the other jurors knew about, was not going to impact the jury's decision making.

"Why wouldn't this be harmless error given the judge questioned the jurors and all assured him they could be fair and wouldn't consider this?" U.S. Circuit Judge Robin Rosenbaum asked.

Carollo's attorney, Elliot Kula, said Bush testified in a separate suit his business brought against the city that he was "vested in the outcome" of the case against Carollo due to his 20% interest in the jury's award.

Kula argued the jury knew Bush, and his relationship with plaintiffs, from Carollo's opening statement, during which a video was played showing Bush harassing Carollo on the street. He was central to the defense's "Who was harassing who?" argument presented to the jury, Kula said.

Kula insisted the judge erred by not questioning Bush as well and examining his intentions.

"I'm not understanding why the motivation of Bush has any bearing on whether the jury wound up being prejudiced by this," Rosenbaum, a Barack Obama appointee, said.

But Rosenbaum and U.S. Circuit Judge Elizabeth Branch contemplated how that would've effected the jurors ability to be fair and impartial.

"Why is that relevant if what were looking at as far as prejudice is to determine whether the jurors were affected? Why is it not enough that the judge called in the affected juror and all the other jurors?" Branch asked.

"There's a presumption of prejudice with extraneous contact with a juror," the Donald Trump appointee added, but noted the encounter at issue was not about the lawsuit.

Carollo argued the lower court should have excused the contacted juror, who eventually became the foreperson returning the jury's $63.5 million verdict, $12.7 million of which belongs Bush.

In Carollo's view, the trial was prejudiced against him because he was not allowed to introduce any other evidence of Bush, which was necessary to establish his argument that plaintiffs and their associates were the harassers, not him.

The 2018 lawsuit against Carollo claimed he retaliated against two businessmen from the Little Havana neighborhood of Miami who had filed an ethics complaint against him and supported his political opponent in a run-off election, attempting to destroy their businesses and reputations.

William Fuller and Martin Pinilla accused Carollo of targeting their businesses for investigations and inspections with hopes of shutting them down, even directing SWAT teams to raid businesses run by plaintiffs' tenants.

Their attorney, Jeffrey Gutchess, told the circuit panel Bush's juror contact was "inconsequential in light of the avalanche of evidence against Mr. Carollo."

"But in all fairness, what was Mr. Bush doing there? Interacting with her and making those kinds of comments?" Rosenbaum asked.

Gutchess said Bush was joking when he told the juror he was following her. He argued that Bush made no reference to anything specific to the case or at issue in the trial.

But Rosenbaum did not appear entirely convinced that there was no potential foul play at hand, noting that the juror recognized him from the courtroom.

"This does smell a bit," Rosenbaum said.

"He has money at stake, he's in the courtroom spending time there, so it sort of defies reality to suggest he doesn't know who she is," she added.

Gutchess underscored the judge's finding after the six-week trial, that Carollo's "weaponization" of his official authority was "so pervasive and disproportionate that it shock[s] the conscience."

U.S. Circuit Judge Embry Kidd, who was recently appointed by Joe Biden, rounded out the three-judge panel. The judges did not signal when a ruling will be issued.

Source: Courthouse News Service