Back in 2016, Judge O'Scannlain authored this opinion, and Judge Fisher's dissent summarized the relevant holding as follows:
"When a sitting juror is alleged to have continuously texted
a judge friend about the trial and relayed the judge’s
information to the jury, the majority concludes the trial court
need not investigate further – and the jury verdict would not
violate due process. I disagree."
I thought that was a pretty darn good way to start a dissent. And said that I expected the case go en banc.
Today, it did.
I'll make another prediction. The en banc court will go the other way. Maybe 8-3? (Of course, it totally depends on the draw, but a wild, meaningless projection never hurt anyone, right?)