I was asked recently whether a juror can be removed for refusing to deliberate. The case in which the issue arose has concluded, a federal circuit court just weighed in on the issue, and I thought that others might be interested in the law in this area, hence this post. There’s no North Carolina case directly on point. The closest precedent that we have is State v. Sanders, 347 N.C. 587 (1998), a case that arose from a capital resentencing. The jury in that case went off the rails in a number of ways, some of which aren’t relevant here. The aspect of the case that is pertinent concerns the jury’s conduct after it divided 11-1, with the majority favoring the death penalty. The holdout juror “indicated that several jurors expressed their belief that she was not capable of continuing deliberations and . . . stated that they hoped she or [a family member would] be [defendant's] next victim” if a life sentence were imposed and the defendant were paroled. In response, the holdout juror apparently stated that she could not impose the death penalty because she had not heard all the evidence at the defendant’s original trial. The trial judge declared a mistrial based on juror misconduct, and the state supreme court found that it was supported by manifest necessity. The jury was “not deliberating as [the trial judge] had instructed,” including by considering irrelevant matter such as parole eligibility and what evidence might have been introduced at the previous trial; it was “disregarding the trial court's instructions concerning [the jurors’] duties and the law”; and it was engaged in “personal attacks and threats directed at a juror.” While Sanders involved what might be described as a general breakdown in deliberations, cases from other states are more directly on point regarding a single juror’s refusal to deliberate. For example, in Prieto v. Commonwealth, 682 S.E.2d 910 (Va. 2009), the court considered a capital trial that had been divided into three phases: guilt-innocence, mental retardation, and penalty. The case reached the second phase, where the jury divided 11-1. The holdout juror sent a note to the judge stating that his decision was “firm and final and deliberation has crossed the line into peer pressure,” and asking the judge to “end this deliberation.” The judge gave the jury an Allen charge and sent the jurors to lunch, instructing them to resume their deliberation afterwards. Instead, the holdout sent another note about the “pressure” he was facing and asking the judge to end the deliberation and to dismiss the juror. The judge declared a mistrial based on juror misconduct, including what it viewed as the holdout’s unwillingness to follow instructions and to continue deliberation. The reviewing court affirmed, finding the mistrial supported by manifest necessity based on the juror’s misconduct. By contrast, in Semega v. State, 691 S.E.2d 923 (Ga. Ct. App. 2010), the trial judge replaced a holdout juror in a rape case after the foreperson sent out a note stating that the juror “refus[ed] to look at all of the evidence before making a decision” and that the holdout’s “only view is since there was no camera in the room it's [the defendant’s] word versus [the alleged victim’s].” Although the holdout told the judge upon inquiry that he had “listened to every bit of the words that has went on in this court” and had discussed the evidence with the other jurors in keeping with the court’s instructions, the court found a refusal to deliberate based on the foreperson’s representations, and replaced the juror with an alternate. The reviewing court found error, stating that although a juror’s refusal to deliberate might in some cases warrant removal, “a particular danger of harmful error is posed by the removal of a lone holdout juror. Such a juror may well have concluded that a reasonable doubt exists as to the defendant's guilt and therefore has not refused to deliberate but has simply refused to engage in additional deliberation after reaching his conclusion.” See also Williams v. Cavazos, __ F.3d __ (9th Cir. May 23, 2011) (finding a Sixth Amendment violation where the trial judge “dismissed a known holdout juror [on the grounds that he was biased against the prosecution] and replaced him with an alternate”; the court emphasized that the Constitution “does not allow a trial judge to discharge a juror on account of his views of the merits of the case”). What’s the bottom line? Although a juror’s complete refusal to deliberate, in contravention of a judge’s instructions, can constitute juror misconduct that warrants the replacement of the juror or the declaration of a mistrial, a judge should be very cautious about removing a juror for refusal to deliberate, especially when the “refusal” happens after a long period of deliberation and may simply reflect the juror’s feeling that he or she has explained his or her position to the best of his or her ability, and that he or she simply has nothing further to say. It is not misconduct for a juror to view the evidence differently than other jurors or to be unpersuaded by others’ arguments.
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