Eleven of the 12 have asked the judge to toss one of the other jurors. This is on the second day of deliberations:
The juror in question, No. 9, works for the National Guard as a bookkeeper.
The judge read from the note the jury foreman sent him, which began, "We the jury request that juror No. 9 be removed from the jury."
"She is being rude, disrespectful and unreasonable," the note said. "She has had violent outbursts with other jurors and that's not helping anyone. The jurors are getting off-course. She's not following the laws and rules that are being stipulated to in the main instructions."
A complex trial almost always results in the jury eventually getting testy with each other at least. But that usually requires some time, locking them all into a small room for several days. That's normal. When things start bad, it's not normal. It's a sign you're heading for a mistrial.
Yesterday, when they broke early because things were getting "stressful", I guessed there was one juror who wanted an immediate acquittal. In my mind, though, the profile was male, although the bookkeeper thing fits perfectly. There are these people who, when presented with complex situations - like parsing an 80-page jury instruction after listening to lots of evidence - shut down and come to a conclusion without reference to facts. Again, I am just guessing, but I think what's happening here is a person who isn't too bright is feeling overwhelmed and hostile - and finds that as a juror, she can lash out and no one can readily tell her to stop.
I would say the judge is in a tough spot. It seems clear to me if he leaves No. 9 on the panel, they will hang. But he can't just remove someone because they're disagreeable. He has to wait to see if they can work it out, but the longer he waits, the tougher it will be on the rest of the jury when No. 9 is eventually replaced. This unpleasant person has a view - not guilty, is my guess, but whatever it is - and she's making enemies of the rest of the jury. The longer the judge waits, the harder it becomes for the jury to start over with an open mind, because they won't be able to forget that No. 9 was in favor of that view.
If I were the judge, I would wait until tomorrow in case the jurors can work something out among themselves. If it doesn't get better, then I'd bring each of them in individually with counsel present and ask whether the situation is preventing the panel from deliberating. If I can find grounds to toss No. 9 without getting overturned on appeal, I'd do it. Obviously, if I were Stevens's counsel, I'd fight like hell to keep No. 9 on the panel and then hope for a mistrial.
Whatever happens, when this is all over, the authorities need to find out if anyone built a house for No. 9 recently.
I think he should send them home pretty quick. Let them cool off and get some rest (and, without explicitly stating it, contemplate the prospect of them going through all this for nothing). Juror 9 might, after some reflection, calm down and join in deliberations.
I won't pretend to know the federal rules off the top of my head, but I think if you can show a juror is "refusing to deliberate," they can be removed - which usually means an unwillingness to listen to other jurors and participate in discussions of the evidence. They'll probably have to take another shot at it tomorrow, though, just to make sure it really can't be done.
Stevens has a good shot at a mistrial if he can keep a disruptive juror on, of course - the juror everyone hates isn't going to bring anyone around to their point of view, and may drive fence-sitters into the other camp, while not changing her own mind, but as I recall, Stevens wanted to "clear his name in time for election day," and he can't really do that without an actual verdict.
Posted by: Gib | October 23, 2008 at 05:04 PM
I hope he'll bring them into the courtroom first thing tomorrow and give them the speech about responsibility and duty and the expense of holding a trial and how the lawyers and the court personnel have all worked very hard on this case, blah blah. Having been on the receiving end of that speech, I can say, it might help. It depends on whether there is someone in the room who can talk No. 9 down off the ledge, sort of buddy up with her to give her a friend who makes her feel less isolated but who'll she'll listen to if she starts going off the rails again. After the note they sent out, I don't see that as very likely.
Posted by: Mithras | October 23, 2008 at 06:20 PM