United States District Court, Southern District of New York
June 26, 2002
UNITED STATES OF AMERICA
MORDECHAI SAMET AND CHAIM HOLLENDER, DEFENDANTS.
The opinion of the court was delivered by: McMAHON, United States District Judge.
DECISION GRANTING DEFENDANTS' MOTIONS FOR MISTRIAL AND DENYING
GOVERNMENT'S MOTION FOR RULE 23(B) DISCHARGE OF JUROR
Fed.R.Crim.P. 23(b) permits a Court to discharge a deliberating juror
for just cause when the juror becomes unable to perform her duties as a
juror by reason of illness or incapacity — a term that has been
broadly defined to include psychological inability to go forward with
deliberations. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997),
prohibits a Court from discharging a deliberating juror if the record
evidence reveals any possibility that the request to discharge the juror
stems from her views of the merits of the case. The question raised by
the instant motions is: what to do when the reason a deliberating juror
can no longer perform her duty is due to the pressures of being in the
minority? Put otherwise, when Rule 23(b) intersects with Thomas, which
This case involves a seventy-three count indictment that was originally
brought against fourteen defendants, all of whom are members of the
Hasidic Jewish community, most of whom live in or near the Village of
Kiryas Joel. It charges the defendants with a variety of frauds (mail,
wire and bank) involving Ponzi schemes, phony bank deposits, insurance
policies issued in false names, and hundreds of dummy tax filings claiming
earned income credits. The principal defendants (including the two
defendants who are on trial) are additionally charged with violating the
Racketeering Influenced and Corrupt Organization Act (RICO),
18 U.S.C. § 1961, by their participation in what the Government
characterizes as "The Samet Group."
The case took seven weeks to try. Jury selection was done using
questionnaires, given the length of the trial, the nature of the issues,
and the notoriety of the community.*fn1 After reviewing 272
questionnaires, and conducting individual voir dire of over 120 venire
persons, a total of 12 jurors and 6 alternates were empanelled.
Presentation of evidence, summations and the charge took another six
weeks. The jury commenced deliberations on June 10, 2002, at about 3:30
The jury deliberated without incident through Thursday, June 13. It
very few notes, but those that came indicated that the jurors
were intimately familiar with the evidence, notwithstanding the length
and complexity of the trial, and were focused on the task at hand. There
was not the slightest evidence of any discord.
The world view in the courtroom changed radically on the morning of
Friday, June 14, which would have been the fifth day of deliberations. At
8:45 A.M., Robert Rogers, the Deputy Chief Clerk of the Court for the
White Plains Division delivered the news that Juror #2 had called,
announced that she could not deliberate any more and planned not to come
to Court. He had directed her to report at 9:45 A.M. Shortly thereafter,
when my senior law clerk (who functions as my Deputy Clerk in criminal
cases) arrived, he found three messages from Juror #2 on his phone mail.
Two had been left the previous evening; the third a few moments earlier.
All were in a semi-hysterical tone of voice — teary, anxious,
The first message was: "Hi, Jim. This is [Juror #2]. Could you please
get one of the alternates to replace me? I'm being verbally abused. And
the way I feel right now, for me to run out, I'm just going to vote the
same as everyone else, just to be done with this. I can't sleep. I've
been living on kaopectate since the trial started. My nerves just can't
take it anymore. Please call me. The number is [xxx-xxx-xxxx]. The cell
phone number's [xxx-xxx-xxxx]. Thank you. And please, if I have to, if I
can't get out of this, please don't mention this to the jury members,
because that's just going to make it worse. Please. Thank you. Bye."
The second message said: "Hi, Jim. It's [Juror #2] again. I just want
to let you know I don't plan on coming tomorrow morning. I'm physically
sick to my stomach. I no longer feel that I can be fair. Please call me
as soon as you can at home. The number is [xxx-xxx-xxxx]. Thank you."
And the third message said: "Jim, hi. It's [Juror #2] again. It's a
quarter to 9:00. I'm still trying to reach you. I spoke to Robert
Rogers. He told me that I need to come in. I'm sick to my stomach. But if
you get this message, maybe you can try to call me in the car. I'm going
to try to make my way in. I'm obviously going to be very late. The cell
phone number is [xxx-xxx-xxxx]. I just — there's no point in me
being on this trial anymore, because I feel like I can no longer be
fair. I don't feel like I can voice an opinion. If I have any questions,
I just — I got to get out. I can't handle it anymore. Thank you."
As soon as counsel and the defendants had gathered, the messages were
played for them. The Government, noting the distress in Juror #2's voice,
suggested that a careful and limited inquiry be conducted in order to
determine whether she was capable of deliberation. If she was not, the
Government asked that the deliberation proceed with eleven jurors.
Defendant Samet's counsel argued that Juror #2 should only be removed
from the jury if it is absolutely necessary and that empanelling an
alternate juror should not be considered. Both defendant Samet's counsel
and defendant Hollender's counsel suggested that it might be advisable to
let the jury leave early and reconvene on Monday, in order to allow for a
cooling-off period. (6/14/02 Tr. at 3569-3578).
The Court had previously arranged to segregate Juror #2 from her fellow
jurors upon her arrival. After consultations with counsel were
concluded, I voir dired her in the presence of counsel and the
The first voir dire went as follows:
THE COURT: Hi, [Juror #2]. I'm going to ask you to
speak up. Okay? We've all heard the
messages that you left for Jim. Thanks
for leaving them. As a result, I was
able to play them for everybody. And we
also got the note that Robert Rogers
sent up after he spoke to you on the
telephone. And I am so sorry, and we're
all very sorry, that you are feeling so
poorly and so upset. I need to ask you
some questions. Okay? I have to caution
you about some things. You remember,
when I instructed the whole jury I don't
want to know what's going on in the
deliberations? I need to reinforce
that. It's very important that we're
not supposed to invade that jury room.
So it's very important that you
not tell me about what is the nature
of the deliberations or what the vote
is, or anything else like that. But I
want to ask you about, not about
counts and votes and stuff like that,
but about how you feel you're being
treated and how it's affecting your
ability to proceed as a deliberating juror.
That's what the issue is. So I gather
that you're feeling a little abused.
JUROR #2: By just one.
THE COURT: By just one person?
JUROR #2: Yes. Everybody is being nice. It's hard
for me to say without —
THE COURT: I hate to do this. But could we put you
in the witness box, just so you'll have
JUROR #2: I'm just not sure how to answer without
saying what's going on in there.
THE COURT: I understand. It's tricky. It's tricky.
You say there is one person who is being
abusive to you.
JUROR #2: Yes. I just don't feel that I can voice
my opinions, or if I have a question or a
doubt, if I want to vote one way or the
other, everyone is upset, because I just
don't — oh, how do I say this? I
just feel like I'm open-minded.
THE COURT: I want everyone to be open-minded.
JUROR #2: I don't believe that's the case. Well, I
can't say that.
THE COURT: This is the time of the case when people
actually do form opinions. So it's not
open-minded in the same sense of being
open-minded during the trial. People are
deliberating, people are, in fact
MR. BURSTYN: You're Honor, I believe you're doing —
THE COURT: Mr. Burstyn, okay. But what I'm trying to
figure out is whether I've got —
without the details of what people are
talking about, whether I've just got
folks who are tired and testy because
this has been going on for several days,
or whether you're being treated
wrongfully. I mean, there's a difference
between those two things.
JUROR #2: I think everyone is focused in one
direction, one direction only.
THE COURT: Okay.
JUROR #2: In —
THE COURT: Okay. Let me ask you a couple of other
questions. On the telephone, you
indicated that you were really upset,
that you were on kaopectate.
JUROR #2: Yes, I'm sick every day. My nerves, the
stress. It's just — I don't feel I
can be fair anymore. I'd just vote as
everyone else is.
THE COURT: That's a big question. That's a big
question. Obviously, if I were to
instruct you as the Judge that we've
resumed deliberations, maybe
Monday, to give people a chance to cool
off a little bit, and that everybody is
supposed to go in and do their best and
be fair deliberating jurors, would you be
able to follow that instruction?
JUROR #2: I think I may be the only one who follows the
THE COURT: Do you think it would help to kind of
cool things off if we sent everybody home
and started again on Monday?
JUROR #2: I don't want to be here anymore. I really
THE COURT: I know —
JUROR #2: I know that, but I don't feel that we're
ever going to come to any conclusion
based on the way everyone is focusing to
the point. See, I can't even say what's
going on. It's just so farfetched.
THE COURT: If we were to bring the others out here
— I don't know whether today or
Monday — and I were to remind them
to respect everybody's views, would that
make it easier for you to go on?
JUROR #2: I don't think so. We can't bring an
THE COURT: I get —
JUROR #2: You ask the questions, I know. I've sat
here long enough to know.
THE COURT: I wish we could have like a normal, human
conversation. And of course, in these
circumstances, we can't have a normal,
human conversation, and I apologize for
that. Let me ask you a question. What do
you mean when you say you don't think you
can be fair anymore?
JUROR #2: I think I'm just going to start going
with the flow, rather than voice any more
opinions or thoughts or what I feel or
what I want examined. I don't think I
could do that anymore. It's taken its
toll. It really has.
THE COURT: I can see it in your face, and we can all
hear it in your voice.
JUROR #2: I'm sorry. I really apologize.
THE COURT: [Juror #2], please, understand this. You
don't have anything to apologize for.
Okay? I want you to understand that. You
don't have anything to apologize for.
Everybody — and that includes you
and everybody else — have been a
trooper for so long. You guys have been
so terrific to stick with it, and you
have nothing to apologize for. I'm
telling you that from my heart, and I
know that I speak for everybody in this
room. You have nothing to apologize for.
(6/14/02 Tr. at 3579-84).
At this point, I excused Juror #2 to consult with counsel. The
Government stated that the juror had expressed views that might be
different from those of everyone else, but suggested that she had not
clearly stated that she could not fulfill her role as a deliberating
juror. Counsel for defendant Samet concluded that she was a dissenter,
since she contrasted herself with everyone else. I granted the
Government's request for clarification of the juror's position on
discharging her duty and called her in for a second voir dire. It went as
THE COURT: I need to clear some things up, so we'll
try to be real specific. When you said
just one person — the very first
thing you said, I asked you if you were
feeling abused, and you said just one
person. Did you mean that just one person
was being abusive to you?
JUROR #2: Right.
THE COURT: Correct. Okay. Obviously, it's not
appropriate. It happens
that people get
testy, but it's not appropriate. Would it
help matters if I were to talk to
whichever juror was being abusive, and to
explain to that juror that, in kind of a
general way, that that sort of conduct is
JUROR #2: The other jurors kind of took care of
that for me. That's not the whole issue.
It's more of — see, I can't talk
about it. It's —
THE COURT: Okay. Fine. Do you feel that you have
been deliberating, that is, considering
the evidence, talking to the other
jurors, keeping an open mind, listening
to what they have to say?
JUROR #2: Yes, mm-hmm.
THE COURT: Do you feel that, especially if I gave a
little cooling-off period, if I
instructed everyone that that was the way
it was supposed to be, and everyone was
to deliberate in that fashion, that you
would be able to follow my instruction
and, specifically, that you would not do
what you said earlier you would be
inclined to do, which is just go with the
JUROR #2: I don't think so. Let's see if there's
any way I can put this in words without
giving anything away. But like, if we
look at charges for one case, we should
be looking at that in itself, and not
digging through other things, trying to
come up with, I mean, its just —
it's like searching and searching to find
somewhere something else that might tie
this here or that. It's ridiculous what's
going on. I don't think it's fair.
THE COURT: You sort of have a different concept of
what it means to deliberate than the
other jurors do?
JUROR #2: Yeah. It's — I don't think it's
going to be settled until it's all one
way and only one way, and we're going to
keep going until they find that.
THE COURT: Might be, might not.
JUROR #2: Everybody. And if they do decide another
way, they'll come back to it later. No,
it's got to be this. No, I can't. I can't
work like that.
THE COURT: Okay. At the beginning of the case, you
and everybody else said that you would
follow my instructions whatever they
JUROR #2: Mm-hmm.
THE COURT: You promised. I know sometimes it's hard
to keep that promise. One of the
instructions that I gave at the
beginning, that I gave at the beginning
of deliberations and that I give in every
single case is that you're to go into the
jury room, you're to listen to everybody
else, you're to hold to your own views,
if they're your own views, and you're to
be persuaded only if somebody can
persuade you otherwise. That's what I
told everybody. Maybe that's what I have
to tell everybody again. But that's an
instruction that I gave you, to be a
deliberating juror, go through the
evidence, listen to other people, you
give them your views. And in the end,
it's your own decision. I give you that
instruction again. Can you follow that
JUROR #2: No, I don't think so. Not anymore. I'm
sorry. I just — I just can't.
(6/14/02 Tr. at 3590-93).
After the juror was excused a second time, the Government moved for her
dismissal under Rule 23(b), citing United States v. Baker, 262 F.3d 124
(2d Cir. 2001).*fn2
As Baker involved a situation where a juror simply
refused to discuss the case or to deliberate at all after only one half
hour in the jury room, I did not find it particularly apposite. Defendant
Samet's counsel rearticulated his view that the juror was a dissenter,
and then went further. He said, "This juror has told you there is a
deadlock, they are split 11 to 1. If you remove the juror you are in
essence directing the entry of a verdict. That cannot be done. This Court
cannot circumvent a deadlock." (6/14/02 Tr. at 3595).
After further colloquy, in which counsel for defendant Hollender
indicated that a cooling off period might help resolve the situation, I
brought the juror in a third time and told her to go home and think about
what we had talked about earlier, including the fact that part of her
duty was to hold to her own convictions:
THE COURT: Hi. Have a seat. We're going to send you
home for today. I sent everybody home.
I'm not discharging you today. I need you
to come back on Monday morning. I have to
talk to the lawyers. I need some time, so
I want to think about what you said, and
I want you to think, also, over the
weekend about what I said about the
juror's duty being to deliberate, to
listen, to talk, to reason, to change
your mind if you're persuaded, and to
hold your own view even if you're in the
minority, if you're only one person, to
hold your own views if they're really and
truly your views. All of that, every bit
of that is part of a juror's duty, and
every bit is as important as every other
part. And so you come back Monday
morning. And why don't you be here by
9:30. Okay? And we're going to have to
start late Monday, anyway. You be here by
9:30. We'll talk then. Get some rest over
the weekend. I know this is very
stressful, and we all feel terrible about
that. We really do. And just remember,
you don't have anything to apologize
for. Everything is fine. Everything is
fine. (6/14/02 Tr. at 3602-03).
Although no question of any sort was pending at that moment, the juror
blurted out: "I have already changed a couple of votes against my gut. I
just can't be fair. I'm sorry." (6/14/02 Tr. at 3603).*fn3
As soon as the juror left for the day, the Government renewed its
motion for discharge. The defense asked for the weekend to do research.
The Court sent the rest of the jury home after telling them that Juror #2
was ill and could not deliberate that day — a true statement, since
throughout the morning, the Juror was pasty-faced (in contrast to her
fearful, barely able to speak, and emotionally
overwrought to the point of tears.
Over the weekend, both defendants moved for a mistrial. The Government
argued against a mistrial when Court reconvened on Monday morning, June
17. After hearing from all parties, I again queried Juror #2, who had
been kept segregated from the other jurors (she was told to report at
9:30 A.M.; the other jurors were to arrive at 10:00 A.M.). This last voir
dire was quite brief:
THE COURT: Hi, [Juror #2], how are you doing today?
JUROR #2: About the same.
THE COURT: Okay. Have you — I asked you over
the weekend to think about what I had
said on Friday.
JUROR #2: Yes.
THE COURT: And my question to you is really a very
simple question, it's a yes-or-no
question, and it really calls for nothing
other than a yes or no —
JUROR #2: Okay.
THE COURT: — and is: Can you follow my
instruction that you go back into the
jury room and deliberate? Which means you
have a give-and-take with the other
jurors. In the end, you decide the case
for yourself, even if that means you
don't agree with the other jurors. In the
end that means you decide the case for
yourself after listening to their views
of the evidence. That's what a juror's
job is. Can you do that?
JUROR #2: No.
THE COURT: You still feel the same way that you felt
JUROR #2: Can I give an explanation?
MS. BARTON: Your Honor —
THE COURT: Yes or no, that was all I wanted. All I
wanted. Thanks, [Juror #2]. Why don't you
take her back. (6/17/02 Tr. at 24-25).
After excusing the juror, the Court delivered an oral opinion denying
the Government's motion under Rule 23(b) and granting the motion for a
mistrial. At the time, I indicated that a more polished written opinion
Rule 23(b) gives a district court unilateral discretion to remove a
juror for just cause after deliberations have begun, and to proceed to
verdict with eleven deliberating jurors. The rule came in response to
cases in which a juror became seriously incapacitated or was otherwise
unable to continue service upon the jury after a trial of significant
length and involving substantial expense. Fed.R.Crim.P. 23(b) Advisory
Committee Notes. The Rules provide an alternative short of mistrial in
such cases, and does so without calling for the use of alternate jurors
once deliberations have begun — an option that the Advisory
Committee expressly rejected. Rule 23(b) has been held not to work a
violation of the Sixth Amendment right to trial by jury. Patton v. United
States, 281 U.S. 276 (1930).
Rule 23(b) has been invoked in a variety of cases, from one in which a
juror left on a business trip in mid-deliberation, United States v.
Reese, 33 F.3d 166, 172-73 (2d Cir. 1994), to a case where a juror could
not continue deliberations on a religious holiday, United States v.
Stratton, 779 F.2d 820 (2d Cir. 1985), to a case where a juror refused to
participate in deliberations at all, United States v. Baker, supra.,
262 F.3d 124, to a case where the juror became ill during deliberations,
United States v. Wilson, 894 F.2d 1245, 1249-51 (11th Cir.), cert.
denied, 485 U.S. 990 (1988), to a case where the juror became emotionally
and upset, United States v. Molinares Charris,
822 F.2d 1213, 1222-23 (1st Cir. 1987). Just cause also encompasses
situations in which a juror is incapable of rendering an impartial
verdict, either because of threats, United States v. Ruggiero,
928 F.2d 1289, 1300 (2d Cir. 1991), cert denied sub nom Gotti v. Untied
States, 502 U.S. 938 (1991), or because the court learns about a
relationship between the juror and one of the parties, United States v.
Barone, 846 F. Supp. 1016, 1018-19 (D. Mass, 1994), or because of a
change in the juror's life circumstances that affect her impartiality,
United States v. Egbuniwe, 969 F.2d 757, 762-63 (9th Cir. 1992).
There is no question in my mind that Juror #2 could not continue to
deliberate. She was in acute physical and emotional distress, to the
point that she was willing to vote against her conscience and unwilling to
follow my instruction that she hold to her own sincerely-held views. So
she was a clear candidate for Rule 23(b) discharge. And I would have
discharged her under that rule, but for the fact that she told us enough
to reveal that the source of her distress was some difference of opinion
between her and the other jurors.*fn4
In this Circuit, there are two situations in which Rule 23(b) cannot be
invoked. The first, of course, is so obvious as not to require citation:
the Rule cannot be used "for the purpose of obtaining a unanimous
verdict." United States v. Hernandez, 862 F.2d 17, 23 (2d Cir. 1988). The
second is closely linked to the first; it is, "where the record evidence
discloses any possibility that a complaint about a juror's conduct stems
from the juror's view of the sufficiency of the government's evidence."
United States v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997).
The facts in which the Thomas rule was announced bear repeating. In
that case, Juror #5 appeared to his fellow jurors — or at least to
some of them — to be engaging in the pernicious practice of juror
nullification. During deliberations, Juror #6 sent out a note indicating
that Juror #5's predisposed disposition made the jury unable to reach a
verdict. In voir dires, despite the district judge's care not to ask for
anyone's view, five of the jurors revealed that Juror #5 was adamant for
acquittal. All offered different reasons why Juror #5 felt this way
— some couched his objections in terms of the evidence and its
sufficiency or reliability, while others relied on alleged statements
about race and economics and the commonplace nature of drug dealing that
would indicate the possibility of juror nullification of the court's
instructions of law. When Juror #5 was questioned, he did not indicate
any unwillingness to follow
the law. Rather, he indicated an
unwillingness to convict unless he heard substantive evidence
establishing guilt beyond a reasonable doubt. Nonetheless, the Court
dismissed the juror, finding that the juror was engaged in nullification
in favor of his preconceived cultural, economic or social views about
The Second Circuit — after ruling that juror nullification could
indeed constitute "just cause" for Rule 23(b) dismissal of a juror
— concluded that the district judge had improperly exercised his
discretion to remove the juror. In so doing, it announced the bright line
rule set forth above. The Circuit stated that it was adopting this rule
"as an appropriate limitation on a juror's dismissal in any case where
the juror allegedly refuses to follow the law." Id. at 622 (Emphasis in
original). And in a footnote, the court indicated that the rule applied,
not only where the juror's conduct might be grounded in the sufficiency
of the Government's evidence, but on anything touching the merits. Id.,
at n. 11.
The Second Circuit acknowledged that it was setting up a high
evidentiary standard for removal. But the Court indicated that it wanted
to protect holdouts from fellow jurors who have come to the conclusion
that the holdouts are acting lawlessly. It stated that, if the rule were
otherwise, a group of jurors favoring conviction could trigger removal of
a juror simply to reach a unanimous verdict. And the Circuit carefully
extended the rule to situations where the dissenting juror herself raised
the issue of her removal, although that was not the situation confronting
The Thomas rule was adopted wholesale from the rule announced by the
District of Columbia Circuit in United States v. Brown, 823 F.2d 591
(D.C. Cir. 1987). That case, like this one, involved a multi-count,
multi-defendant RICO indictment. After five weeks of deliberation, one
juror — the one in the position of Juror #2 — sent in a note
to the court saying, "I am unable to discharge my duties as a juror." On
a very careful voir dire by Judge Spotswood Robinson, the court learned
two things. It learned that the juror had problems with the way the RICO
conspiracy act reads — so that "if I had known at the beginning of
trial what the act said I would have not said I could be impartial." And
it also learned that he had problems with the evidence. Id., at 597. The
juror was careful not to reveal how the jury stood on any count in this
multi-count indictment case. Indeed, in Brown there is far less
information available about the state of the jury's deliberations than
there is here; we know, as the court in Brown did not, that Juror #2
disagrees with her fellow jurors on some matters and has changed her vote
on a couple of counts in violation of her oath.
The Government argued in Brown that the juror should be discharged
under Rule 23(b) because he could not follow a law with which he
disagreed. The defense countered that the juror really had problems with
the evidence. Judge Robinson discharged the juror pursuant to Rule
23(b). It took the jury of 11 three additional weeks to reach a verdict,
and the defendants were not convicted on all counts. Thus, one could
not, with 20-20 hindsight, conclude that the discharged juror was the
only impediment to a verdict. Nonetheless, the D.C. Circuit reversed the
convictions because of an abuse of discretion under Rule 23(b),
articulating the rule that was later adopted in Thomas.
There is a critical difference between this case and the facts of
Thomas and Brown. In those opinions, there is no indication that the
recalcitrant jurors were either physically or emotionally incapacitated,
or that they were not willing to abide by the Court's instruction to
deliberating in fidelity to their oaths. In other words, those
jurors could have been sent back into the jury room. I did not have that
option. Juror #2 could no longer function as a juror. She was physically
and psychologically impaired, and she categorically refused to follow her
oath. She stated repeatedly that she would "go with the flow" because she
could not take it any more. She said she would not raise questions or
participate in discussion and would vote with "everyone else." And she was
fearful of confronting her fellow jurors.*fn5 She appeared to the Court
to be on the verge of a nervous breakdown. Rule 23(b) was, in theory,
made for her situation.
But the reason she could not function was her inability to withstand
the pressure of being in the minority. Knowing that, does the rule of
Thomas/Brown preclude me from dismissing her and proceeding with eleven
Counsel labored long and hard and came up with only one factually
apposite case, Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997), a §
2254 habeas case. In Perez, after a California state jury had deliberated
for only one half hour, a juror asked to be removed from the jury. She
told the judge that she was the lone holdout for acquittal and that
everyone was angry and stressed. The judge conducted a voir dire of the
recalcitrant juror in which he offered to do virtually the same things I
suggested to Juror #2 in an effort to calm matters down. The judge also
voir dired the foreperson. He revealed that the jurors had prevailed upon
the holdout to change her mind, but that she reversed herself again and
thereafter could not participate in rational discussion. The trial judge
then excused the juror, noting for the record that she appeared to be
emotionally out of control. Pursuant to a California statute, an
alternate was called in, deliberations began anew, and a conviction was
reached and affirmed by the State courts.
The Ninth Circuit, reviewing the question on habeas, ruled that
Petitioner's Sixth Amendment right to trial by jury was not violated by
the dismissal of the lone dissenting juror. It held that the juror
— who sounds like she appeared quite similar to our Juror #2
— could be dismissed for good cause because of her emotional
state. It then ruled as follows:
The fact that the trial judge knew that Robles was the
sole juror holding out for an acquittal when he
dismissed her does not invalidate his decision to
excuse her from jury service. The Fifth Circuit has
upheld the removal of jurors for cause, even where the
court knew that the removed juror was holding out for
acquittal. [Y] As the district court noted, `Nothing
in the record indicates that the trial court's
discretion was clouded by the desire to have a
unanimous guilty verdict.' In fact, the record shows
that the district court was forced to act, not because
of Robles's status as a holdout juror, but because of
inability to continue performing the
essential function of a juror-deliberation.
After Robles blurted out the juror deadlocked stance
on Perez's guilt, the trial judge was faced with
limited alternatives. He could not order the jury just
to continue deliberations, because Robles was
emotionally unable to continue deliberating. He also
could not sua sponte order a mistrial because jeopardy
had attached and absent a finding of manifest
necessity, the Double Jeopardy Clause of the Fifth
Amendment would have precluded the State from trying
Perez before a new jury. A finding of manifest
necessity under these circumstances is
indistinguishable from a finding that good cause
justified excusing Robles from the jury.
Perez, 119 F.3d 1427 (citing United States v. Huntress, 956 F.2d 1309, 1313
(5th Cir. 1992) (fact that removed juror was a holdout did not `raise a
red flag'); United States v. Leahy, 82 F.3d 624, 629 n. 4 (5th Cir. 1996)
(`Evidence that a juror was holding out . . . does not alter the trial
court's discretion in removing the juror.'.
The holding in Perez rests on a shaky premise. In determining that the
judge's knowledge of the juror's status as a holdout did not prevent her
removal, the Ninth Circuit specifically relied on two Fifth Circuit
cases: Huntress, 956 F.2d 1309, and Leahy, 82 F.3d 624. However, in both
of those cases, the juror's alleged status as a holdout was a matter of
conjecture, and the "Ared flag" statement quoted by the Ninth Circuit was
no more than dictum. Huntress, 956 F.2d at 1313.
In Huntress, the Fifth Circuit ruled that defense counsel's `lone
holdout' theory "is pure speculation with no support in the record." Id.
at 1313. And it cited with approval a prior decision of its sister
circuit, United States v. Wilson, 894 F.2d 1245 at 1250 (11th Cir.),
cert. denied sub nom Levine v. United States, 497 U.S. 1029 (1990), in
which a Rule 23(b) removal was upheld because "the record does not
present even the slightest basis to believe that this juror was a holdout
juror or that the jury had reached any sort of impasse in its
deliberations." Huntress, 956 F.2d at 1313.
Leahy, too, involved speculation over the juror's views on the merits.
The juror who was removed in Leahy was found to have a severe hearing
impairment after deliberations began. The Circuit stated, "[h]is refusal
to deliberate could have been, as the district court found, the result of
his inability to hear, and not his conviction about the case." Id.
However, Perez, Leahy and Huntress all posit that a juror's holdout
status does not raise an automatic red flag. After careful
consideration, I conclude that the Second Circuit would not adopt the
same point of view.
While the Second Circuit has never confronted a situation quite like
the one presented here, its jurisprudence on the question of removing a
dissenting juror has been remarkably consistent. In United States v.
Stratton, 779 F.2d 820 (2d Cir. 1985) and United States v. Wilson, 894
F.2d at 1250, cert. denied sub nom Levine v. United States, 497 U.S. 1029,
the Court affirmed a juror's dismissal only because the record did not
reveal the "slightest basis" to believe that the removed juror was a
holdout. And in Thomas, although it did not need to comment on the issue
(having disposed of the case on other grounds), Judge Cabranes went to
great pains to observe that a juror could in no circumstances be removed
to break a deadlock. This strongly suggests that, whatever the state of
the law in the Fifth and Ninth Circuits, a juror's status as a holdout
puts up a "red
flag" in this one. Huntress, 956 F.2d at 1313.
I also find United States v. Hernandez, 862 F.2d 17 (2d Cir. 1988), to
be instructive. In Hernandez, there were questions about the behavior of
one juror (Juror #4) throughout the trial. Within an hour after
deliberations began, the other eleven jurors sent Judge Bartels a note
saying that this juror "has a prejudice and lacks the rational common
sense to deliberate in a logical way." Id., at 20. They also revealed
that the juror wanted to start a conspiracy case against the Government.
The jurors asked that Juror #4 be replaced by an alternate. The Court
denied a defense motion for a mistrial and refused both the Government's
request that the juror be removed and its suggestion that he be examined
by a psychiatrist.
A second note followed shortly thereafter. It seemed to indicate that
the problem was that the Juror #4 held a different view of the evidence
than did the other panelists. However, the note also revealed more
bizarre behavior on Juror #4's part, including violence directed against
the other jurors. Nonetheless, after receiving the foreperson's assurance
that the jury could deliberate in a calm and rational manner, the court
denied motions for removal (by the Government) and mistrial (by the
defendant), and the jurors went forward.
On the second day of deliberations Judge Bartels revealed that he had
learned through his clerk that Juror #4 had been discharged from the Navy
due to psychological problems. However, things were quiet in the jury
room, and so he declined to explore that issue in favor of waiting to see
if the jury could reach a verdict. Two days later, the other jurors
renewed their complaints about Juror #4's mental state and his inability
to understand the evidence. It was clear from the tenor of the other
jurors' notes that Juror #4 was the sole holdout for acquittal.
Nonetheless, after voir diring Juror #4 about his mental history, the
judge removed him pursuant to Rule 23(b). The Second Circuit held that
this was error, because it could not be confident that the juror was not
removed to break the deadlock, rather than because of his inability to
deliberate. Because other reversible errors had infected the
proceedings, the Court of Appeals did not remand for clarification.
Of course, Hernandez is hardly a perfect fit with this case. However,
in that case a judge was reversed after discharging a juror who was not
mentally competent to continue deliberations four days into
deliberations, at a time when it was clear "from the tenor of the record"
that the juror was deadlocking the jury. That is precisely what happened
here. The only substantive difference is that here the juror herself
raised the issue, whereas in Hernandez the other jurors did so. After
Thomas, this is not a difference that makes a difference.
The Government contends, without citation to any authority, that the
reason why the juror becomes psychologically unable to deliberate "is
fundamentally simply irrelevant to the analysis." (Letter dated June 15,
2002 at 6.) That was indeed the Ninth Circuit's conclusion in Perez. But
the same cannot be said in this Circuit, where a juror's status as a
holdout is a "red flag" that will result in the closest scrutiny of the
District Court's decision to discharge the juror. United States v.
Thomas, 116 F.3d 606.
A fair reading of this record — the only fair reading, I fear
— is that the juror became unhinged by the process of
deliberation. But the part of the process that unhinged her was holding
out, at least on some counts. In such a case, Second Circuit precedent
suggests that Rule 23(b)
must give way to the greater imperative of not
removing a juror whose views on the merits place her in the minority.
Or, to return to the analogy with which I began this opinion, in this
Circuit, when Rule 23(b) meets the rule of Thomas, it is Rule 23(b) that
Because I can neither dismiss Juror #2 under Rule 23(b) nor permit her
to continue deliberating, I must declare a mistrial.