U.S. v. Thomas (1997)
[Edited for course use.]
SUBSEQUENT HISTORY: As Amended June 26, 1997.
Supplemental opinion at United States v. Thomas, 1997 U.S. App. LEXIS 11767 (2d
Cir. N.Y., May 20, 1997)
Appeal after remand at
United States v. Thomas, 204 F.3d 381, 2000 U.S. App. LEXIS 2014 (2d Cir. N.Y.,
2000)
DISPOSITION: Vacated the judgments of the district court and remand for a new trial.
JUDGES: Before: LUMBARD, MCLAUGHLIN and CABRANES, Circuit Judges.
OPINION:
[*608] JOSE A. CABRANES, Circuit Judge:
We consider here the propriety of the district court's dismissal of a juror
allegedly engaged in "nullification"--the intentional disregard of the law as
stated by the presiding judge--during the course of deliberations. We address, in turn, (1) whether such alleged misconduct constitutes "just cause" for dismissal of a deliberating juror under Rule 23(b) of the Federal Rules of Criminal Procedure ("Rule 23(b)"), n1 so that a jury of only eleven persons may continue to deliberate and return a verdict, and (2) what evidentiary standard must be met to support a dismissal on this ground.
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n1 FED. R. CRIM. P. 23(b) provides:
Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors. (Emphasis supplied.)
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The appellants are two sets of defendants convicted of violations of federal narcotics laws after two separate trials in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge). We have decided the appeals of defendants convicted at the first of these trials in a summary order of this date. We write here to consider only the appeals of Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, all of whom were convicted in the second trial. On appeal, they argue, chiefly, that the district court abused its discretion when it ordered the dismissal of one of the jurors pursuant to Rule 23(b) during the course of jury deliberations. The court based its decision to remove the juror, in large part, on a finding that the juror was purposefully disregarding the court's instructions on the law--in effect, that the juror intended to acquit the defendants regardless of the evidence of their guilt.
We consider below whether a juror's intent to convict or acquit regardless of the evidence constitutes a basis for the juror's removal during the course of deliberations under Rule 23(b). We also consider what constitutes sufficient [**6] evidence of that intent in light of the limitations on a presiding judge's authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations. We conclude, inter alia, that--as an obvious violation of a juror's oath and duty--a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b). We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case. We hold that the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court's instructions on the law, where the record evidence raised the possibility that the juror's view on the merits of the case was motivated by doubts about the [*609] defendants' guilt, rather than by an intent to nullify the law. Accordingly, we [**7] vacate the judgments of the district court and remand for a new trial.
I.
We have before us the consolidated appeals of ten criminal defendants convicted of related conduct in two trials held in the Northern District of New York. The named defendants in this case, including those whose appeals we consider here, were arrested on May 5, 1994. In an indictment returned on May 13, 1994, they were charged with conspiracy to possess and distribute cocaine and crack cocaine and actual possession and distribution of these substances. A 30-count, superseding indictment was returned on October 14, 1994, which added a series of forfeiture counts against the defendants.
Ceasare Thomas, Myron Thomas, Lamont Joseph, Santo Bolden, and Raymond Eaddy were tried on charges set forth in the superseding indictment beginning on November 22, 1994. After a Government witness apparently made certain prejudicial statements on the stand, a mistrial was declared on November 28, 1994. A second trial of the same defendants began two days later, on November 30, 1994, and the jury returned verdicts of guilty for all defendants but Raymond Eaddy on December 14, 1994. We affirm these convictions in a [**8] summary order filed today. See United States v. Thomas et al., 1997 U.S. App. LEXIS 11767, Nos. 95-1337 et al. (2d Cir. May 20, 1997).
The remaining appellants, Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, along with Terrence Thomas, Shawne Thomas, Carrie Thomas, Stephon Russell, and Robert Gibson, were the subject of a separate trial, which began on January 18, 1995. n2 Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas appeal from judgments of conviction entered against them following this trial, and we consider their appeals here. n3 We confine our factual discussion of this trial to the events leading up to and including the ultimate dismissal of one of the jurors. These events provide the basis for the appellants' primary challenge to the proceedings below.
* * *
During jury selection, the Government attempted to exercise a peremptory challenge to a juror who would later be empaneled as "Juror No. 5." Because the juror was black--indeed, the only black person remaining as a potential juror in a case in which, as the record indicates, all of the defendants are black--defense counsel objected to the peremptory challenge under Batson v. Kentucky (1986), as racially motivated. The Government responded that it wished to exclude the juror based not on his race, but on the fact that he failed to make eye contact with the Government's counsel during the voir dire. Although the district court explicitly found that the Government's peremptory challenge was not motivated by race, the court, in a misapplication of Batson, nevertheless denied the challenge on the ground that the juror's failure to make eye contact was an insufficient basis for his removal. The court would later explain that Juror No. 5's status as the only black juror in a case involving black defendants had motivated its decision to deny the Government's challenge.
Problems regarding Juror No. 5 did not end with his selection for the jury, however. During the course of defense summations on Friday, February 17, 1995, following several weeks of trial, a group of six jurors approached the courtroom clerk to express [*610] their concerns about the juror. The six jurors complained that Juror No. 5 was distracting them in court by squeaking his shoe against the floor, rustling cough drop wrappers in his pocket, and showing agreement with points made by defense counsel by slapping his leg and, occasionally during the defense summations, saying "yeah, yes."
Chief Judge McAvoy met with counsel in chambers to discuss the complaints about Juror No. 5. The judge raised the possibility of conducting interviews with each member of the jury to determine the extent to which Juror No. 5 was distracting them from their duties. Alternatively, he considered dismissing Juror No. 5 in favor of an alternate juror pursuant to FED. R. CRIM. P. 24(c). n5 While the Government approved of the idea of interviewing the jurors, and dismissing Juror No. 5 if the interviews revealed that his behavior was disturbing other members of the jury, defense counsel generally opposed both [**11] options, preferring that the court permit summations to continue with only a general instruction to the jurors that they were not to form any opinions before starting their deliberations. In the face of conflicting recommendations from counsel on how to proceed, the judge dismissed the jurors for the day, requesting that counsel submit memoranda of law over the three-day weekend on an appropriate course of action. The court did, however, instruct the jurors before dismissing them that they should not yet "form any opinions or conclusions about the case."
The court received letter briefs from the Government and from counsel for Ramse Thomas, dated February 17 and 20, 1995, respectively, on the proper course of action regarding Juror No. 5. The Government recommended in its [**12] brief that the court conduct in camera, on-the-record interviews with the jurors (outside the presence of counsel to promote candid responses) to determine whether there were grounds to dismiss Juror No. 5--specifically, to determine whether the juror "had been disruptive to the point where the other jurors don't believe that they can deliberate with him, . . . has formed opinions about the case that he has communicated to the other jurors, or if there is some other misconduct found which establishes that he is unable to render a fair and impartial verdict." In his brief, counsel for Ramse Thomas argued that the court should refrain from conducting any juror interviews, urging that such an inquiry might bias members of the jury against the defendants. He also objected to the dismissal of Juror No. 5.
When the jury returned from the three-day weekend on Tuesday, February 21, the court followed the procedure recommended by the Government. Without counsel present, the court conducted in camera, on-the-record interviews with each juror to determine the extent of any distraction resulting from Juror No. 5's behavior in the jury box. Quite appropriately, the court began each interview [**13] with a general inquiry as to whether anything had happened during the course of trial that would interfere with the juror's ability to deliberate and decide the case properly; the court did not ask about Juror No. 5's behavior unless the interviewee first raised the issue. Although seven of the jurors indicated that Juror No. 5 was a source of some distraction, all but one, who "thought possibly" that she would experience problems during deliberations because of Juror No. 5, anticipated nothing that would interfere with their own ability to deliberate. For his part, Juror No. 5 explained to the court that he sometimes got "carried away" in listening to the attorneys' arguments, but he stated that he would have no difficulty in applying the law as set out by the court to the evidence presented at trial. He also assured the court that he would "restrain himself" from engaging in any further distracting behavior.
After completing his in camera interviews, Chief Judge McAvoy met with counsel in chambers. He explained that he had interviewed the jurors, briefly summarized the testimony he had received in the interviews, and expressed his intention, based on these interviews, [**14] to remove Juror No. 5 in favor of one of the alternate jurors. The judge indicated that he was concerned that Juror No. [*611] 5's behavior, especially in light of the court's own inquiries of the jurors, might place him in an adversarial relationship with his fellow jurors as they began deliberations. The judge then sought comments from each of the parties' counsel. The Government agreed with the court's proposal to remove Juror No. 5, but the proposed dismissal met with unanimous opposition from defense counsel. Apparently persuaded by the defense's vigorous objections, the judge reconsidered the matter and decided to retain Juror No. 5 on the panel. Following the court's meeting with counsel, summations concluded, and the court charged the jury that same day.
The jury deliberated throughout the day on February 22. On February 23, the courtroom clerk reported to the court, and then on the record to all counsel, that she had been approached on two separate occasions earlier in the day by jurors expressing concern over the course of their deliberations. Juror No. 1 reportedly had indicated to the clerk that deliberations were likely to continue beyond February 23 because of a "problem with [**15] an unnamed juror." That same morning, Juror No. 12 had also reported to the clerk that "there was a problem . . . in the jury room [with] one of their number, and specifically . . . indicated [that] juror number five, had, at each time a vote was taken, voted not guilty and had indicated verbally that he would not change his mind." The court concluded, after hearing argument from counsel for the parties, that no action was immediately necessary; the court would "give it a little more time to see what develops."
Troubles in the jury room seemed to escalate rapidly, however. On the following morning, February 24, the court received a note from Juror No. 6, apparently written only on his own behalf. The note indicated that, due to Juror No. 5's "predisposed disposition," the jury was unable to reach a verdict. Following an off-the-record conversation with counsel for the parties, the court again conducted in camera, on-the-record interviews with each of the jurors outside the presence of counsel. This time, jurors focused their comments more directly on Juror No. 5. Several mentioned the disruptive effect he was having on the deliberations. One juror described him "hollering" [**16] at fellow jurors, another said he had called his fellow jurors racists, and two jurors told the court that Juror No. 5 had come close to striking a fellow juror. The judge was also informed by a juror that, at one point, Juror No. 5 pretended to vomit in the bathroom while other jurors were eating lunch outside the bathroom door. The jurors, however, were not unanimous in identifying Juror No. 5 as a source of disruption in the jury room. One juror informed the judge that friction among the jurors had been "pretty well ironed out," and another indicated that the other jurors were in fact "picking on" Juror No. 5.
Although the district court did not specifically inquire into any juror's position on the merits of the case, at least five of the jurors indicated that Juror No. 5 was unyieldingly in favor of acquittal for all of the defendants. The accounts differed, however, regarding the basis for Juror No. 5's position. On the one hand, one juror described Juror No. 5 as favoring acquittal because the defendants were his "people," another suggested that it was because Juror No. 5 thought the defendants were good people, two others stated that Juror No. 5 simply believed that drug [**17] dealing is commonplace, and another two jurors indicated that Juror No. 5 favored acquittal because he thought that the defendants had engaged in the alleged criminal activity out of economic necessity. On the other hand, several jurors recounted Juror No. 5 couching his position in terms of the evidence--one juror indicated specifically that Juror No. 5 was discussing the evidence, and four recalled him saying that the evidence, including the testimony of the prosecution's witnesses, was insufficient or unreliable. As for Juror No. 5, he said nothing in his interview with the court to suggest that he was not making a good faith effort to apply the law as instructed to the facts of the case. On the contrary, he informed the court that he needed "substantive evidence" establishing guilt "beyond a reasonable doubt" in order to convict.
After interviewing the jurors, the judge met in chambers with counsel for the parties. He had the record of the interviews read [*612] aloud and permitted counsel to comment on the appropriate course of action. The Government argued that the jurors' responses indicated that there was "almost a jury nullification issue pattern with [Juror No. 5]," and urged the court [**18] to order the juror's dismissal, while defense counsel unanimously opposed his removal. Having heard argument from counsel, the judge rendered his decision to remove Juror No. 5. He believed that Juror No. 5 had become a "distraction" and a "focal point" for the jury's attention, and that his removal might "allow [the jury] to deliberate in a full and a fair fashion." The court cited Juror No. 5's failure to live up to his assurances regarding proper conduct, referring in particular to the allegation that he nearly struck another juror and to his feigned vomiting. Most importantly, however, the court found that Juror No. 5 was ignoring the evidence in favor of his own, preconceived ideas about the case:
I believe after hearing everything that [Juror No. 5's] motives are immoral, that he believes that these folks have a right to deal drugs, because they don't have any money, they are in a disadvantaged situation and probably that's the thing to do. And I don't think he would convict them no matter what the evidence was.The court found that Juror No. 5 was refusing to convict "because of preconceived, fixed, cultural, economic, [or] social . . . reasons that are totally improper and impermissible."
A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, [*616] a denial of due process and constitute an exercise of erroneously seized power.
United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991, 25 L. Ed. 2d 398, 90 S. Ct. 1124 (1970). n9
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n9 Accordingly, criminal defendants have no right to a jury instruction alerting jurors to this power to act in contravention of their duty. See United States v. Edwards, 101 F.3d 17, 19-20 (2d Cir. 1996) (citing cases); see also United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993), cert. denied, 512 U.S. 1223, 114 S. Ct. 2714, 129 L. Ed. 2d 840 (1994); Dougherty, 473 F.2d at 1136-37. As the Court of Appeals for the Sixth Circuit recognized, to instruct on nullification "would . . . undermine[] the impartial determination of justice based on law." United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.) (finding no error in court's response to jury inquiry on nullification that included the admonition to the jury: "You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case."), cert. denied, 488 U.S. 832, 102 L. Ed. 2d 65, 109 S. Ct. 89 (1988).
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Moreover, although the early history of our country includes the occasional Zenger trial or acquittals in fugitive slave cases, more recent history presents numerous and notorious examples of jurors nullifying--cases that reveal the destructive potential of a practice Professor Randall Kennedy of the Harvard Law School has rightly termed a "sabotage of justice." Randall Kennedy, The Angry Juror, WALL ST. J., Sept. 30, 1994, at A12. Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see DAVID HALBERSTAM, THE FIFTIES 431-41 (1993); RANDALL KENNEDY, RACE, CRIME AND THE LAW 60-63, 250 (1997); [after (1993);] JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA'S CIVIL RIGHTS YEARS, 1954-1965, at 38-57, 221-25 (1987)--shameful examples of how "nullification" has been used to sanction murder and lynching.
Inasmuch as no juror has a right to engage in nullification--and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court--trial courts have the duty to forestall or prevent such conduct, whether by firm instruction [**33] or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury. If it is true that the jury's "prerogative of lenity," Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed--because, among other things, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached--it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror's motivation for "nullification," including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to "faithfully and impartially discharge and perform all the duties incumbent [**34] upon [the judge] . . . under the Constitution and laws of the United States," 28 U.S.C. § 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.
Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire "for cause" precisely because they are unwilling or unable to follow the applicable law. n10 Indeed, [*617] one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.
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n10 The Federal Judicial Center's Benchbook for U.S. District Court Judges includes the following among its list of standard voir dire questions to prospective jurors:
If you are selected to sit on this case, will you be able to render a verdict solely on the evidence presented at the trial and in the context of the law as I will give it to you in my instructions, disregarding any other ideas, notions, or beliefs about the law that you may have encountered in reaching your verdictBENCHBOOK FOR U.S. DISTRICT COURT JUDGES, supra, at 93 (emphasis supplied).
Juror privacy is a prerequisite of free debate, without which the decisionmaking [*619] process would be crippled. The precise value of throwing together in a jury room a representative cross-section of the community is that a just consensus is reached through a thoroughgoing exchange of ideas and impressions. For the process to work according to theory, the participants must feel completely free to dissect the credibility, motivations, and just deserts of other people. Sensitive jurors will not engage in such a dialogue without some assurance that it will never reach a larger audience.
"Freedom of debate," as Justice Cardozo wrote, "might be stifled and independence of thought checked if jurors [**42] were made to feel that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13, 77 L. Ed. 993, 53 S. Ct. 465 (1933); see also United States v. Antar, 38 F.3d 1348, 1367 (3d Cir. 1994) (Rosenn, J., concurring) ("We must bear in mind that the confidentiality of the thought processes of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system."); In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990) ("It is undisputed that the secrecy of jury deliberations fosters free, open and candid debate in reaching a decision."); Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. ILL. L. REV. 295, 295 ("Jurors must deliberate in secret so that they may communicate freely with one another, secure in the knowledge that what they say will not be passed along to others."); Benjamin S. DuVal, Jr., The Occasions of Secrecy, 47 U. PITT. L. REV. 579, 646 (1986) ("The secrecy of the jury room, like that of the Supreme Court conference, is designed to promote the free and candid interchange of views.").
The history of Anglo-American [**43] law and common experience in our own time lend little or no support to the occasional suggestion, see, e.g., Marcy Strauss, Juror Journalism, 12 YALE L. & POL'Y REV. 389, 404-05 (1994), that public scrutiny of how jurors reach their decisions may improve the quality of jury deliberations. In cases that generate much attention or passion in the community, or that involve allegedly dangerous persons or organizations, the mere suggestion that the views of jurors may be conveyed to the parties and the public, even after the trial is over, understandably may cause anxiety and fear in jurors, and distort the process by which a verdict is reached; actually making such information available to the public might invite the retribution that jurors would rightly fear.
The jury system incorporated in our Constitution by the Framers was not intended to satisfy yearnings for perfect knowledge of how a verdict is reached, nor to provide assurances to the public of the primacy of logic in human affairs. Nor was it subordinated to a "right to know" found in the First Amendment. The jury as we know it is supposed to reach its decisions in the mystery and security of secrecy; objections to the [**44] secrecy of jury deliberations are nothing less than objections to the jury system itself.
Because the rule of secrecy is fundamental to the effective operation of the jury system, it is not surprising that courts have been concerned to maintain the confidentiality of the process even after a verdict has been returned and the jury has been formally discharged. It is the historic duty of a trial judge to safeguard the secrecy of the deliberative process that lies at the heart of our system of justice, even in the face of relentless, and sometimes inappropriate, demands by the news media and the public for post-verdict disclosure of what went on behind the closed door of the jury room. See, e.g., Antar, 38 F.3d at 1364 (Rosenn, J., concurring) (noting "the historic efforts of the courts to protect the confidentiality of a jury's deliberative process"); id. at 1367 (stating that juror deliberations "must be zealously guarded from any impermissible encroachment if the [jury] system is to survive"); see also FED. R. EVID. 606(b) (discussed infra pp. 3325-27 & n.13).
Today, it is common--and entirely appropriate--for a conscientious trial judge to advise jurors against disclosing the substance of their deliberations after the end of [**45] a trial. See Globe Newspapers Co., 920 F.2d at 94-95 ("It has . . . been a common and, we believe, wise custom for trial judges to advise jurors . . . that they are not only free to [*620] refuse to disclose what went on in the jury room, but that they may well think it better and more prudent to decline to discuss what has occurred."). At times, courts quite properly go further than this to protect the secrecy of deliberations, imposing strict limitations on what jurors are permitted to disclose. See, e.g., United States v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983) (upholding trial court restriction on juror interviews, including requirement that "no interviewer may inquire into the specific vote of any juror other than the juror being interviewed"), cert. denied sub nom. El Paso Times, Inc. v. United States Dist. Ct. for the W. Dist. of Tx., 465 U.S. 1041, 79 L. Ed. 2d 714, 104 S. Ct. 1318 (1984). In addition, many federal judicial districts have enacted rules that subject post-verdict juror interviews to judicial supervision. See Public Disclosures, supra, at 901 & n.93 (citing rules from 26 federal districts). While these rules often apply only to parties and their counsel, some federal districts [**46] have adopted rules that extend the court's supervisory authority to any post-verdict interviews of jurors. Id. at 901 & n.95; see, e.g., D. CONN. R. CIV. P. 12(e)(1) (incorporated by reference into criminal rules pursuant to D. CONN. R. CRIM. P. 1) ("No juror shall respond to any inquiry as to the deliberations or vote of the jury or of any other individual juror, except on leave of Court which shall be granted only upon the showing of good cause." (emphasis supplied)). None of this is to suggest that we cannot do more to protect the secrecy of deliberations. One eminent authority, for example, has proposed a statute that would impose criminal sanctions on jurors who disclose information about their deliberations, as well as on anyone who seeks such disclosure, without permission of the court. See Goldstein, supra, 1993 U. ILL. L. REV. 295 at 308-10.
2. Investigating Alleged Juror Misconduct During Deliberations
Protecting the deliberative process requires not only a vigilant watch against external threats to juror secrecy, but also strict limitations on intrusions from those who participate in the trial process itself, including counsel and the presiding judge. A court must limit its own [**47] inquiries of jurors once deliberations have begun. As the district court observed in the instant case, the very act of judicial investigation can at times be expected to foment discord among jurors. See supra p. 3297. In particular, a presiding judge is limited in the extent to which he may investigate the reasons underlying a juror's position on the merits of a case. United States v. Brown, 262 U.S. App. D.C. 183, 823 F.2d 591, 596 (D.C. Cir. 1987) ("[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations."). The mental processes of a deliberating juror with respect to the merits of the case at hand must remain largely beyond examination and second-guessing, shielded from scrutiny by the court as much as from the eyes and ears of the parties and the public. Were a district judge permitted to conduct intrusive inquiries into--and make extensive findings of fact concerning--the reasoning behind a juror's view of the case, or the particulars of a juror's (likely imperfect) understanding or interpretation of the law as stated by the judge, this would not only seriously breach the principle of the secrecy of jury deliberations, [**48] but it would invite trial judges to second-guess and influence the work of the jury.
In many cases, a presiding judge is able to determine whether there is "just cause" to dismiss a deliberating juror without any inquiry into the juror's thoughts on the merits of the case. Evidence of the nature and extent of a juror's unavailability, see Reese, 33 F.3d at 172-73 (business trip); Stratton, 779 F.2d at 830-31 (religious holiday), or incapacitation, see Wilson, 894 F.2d at 1249-51 (illness), for example, is ordinarily available without inquiring into the substance of deliberations. In such instances, the judge is free to conduct a thorough examination of the basis for removal--a basis that is itself unlikely to be confused with a juror's views of the sufficiency of the evidence--and to make appropriate findings of fact, including determinations of the credibility of the juror in question.
The need to protect the secrecy of jury deliberations begins to limit the court's investigatory powers where the asserted basis for a deliberating juror's possible dismissal is the [*621] juror's alleged bias or partiality in joining or not joining the views of his colleagues. As the examples [**49] set forth in Section II.A reveal, however, claims of partiality or bias often arise from some event, or from a relationship between a juror and a party, that is both easily identifiable and subject to investigation and findings without intrusion into the deliberative process. In Ruggiero, for example, the juror in question testified that he had received what he took to be a physical threat from one of the defendants. 928 F.2d at 1300. Likewise, in Casamento, a juror's daughter had received a threatening phone call. 887 F.2d at 1186-87. Although the jurors dismissed for bias in Barone and Egbuniwe had not been the subject of threats, the source of their possible bias was similarly subject to ready identification. See Barone, 846 F. Supp. at 1018-19 (defense attorney had represented juror's cousin); Egbuniwe, 969 F.2d at 762-63 (during course of deliberations, juror learned that girlfriend had been arrested and mistreated by police).
In cases such as these, the presiding judge can make appropriate findings and establish whether a juror is biased or otherwise unable to serve without delving into the reasons underlying the juror's views on the merits of the case. Rather, an event [**50] or relationship itself becomes the subject of investigation, with the trial court considering the likelihood that it will prejudice or otherwise disable the juror or jurors in question. Moreover, to the extent that in some of these cases the court is investigating whether a juror has become distracted or agitated following a particular incident, the court is able to rely on its assessment of the demeanor of the juror in question. Such cases may thus come to resemble those involving juror incapacitation. See Ruggiero, 928 F.2d at 1300 (juror "disabled by fear"). In Casamento, for example, Judge Leval, then sitting in the district court, quite appropriately weighed the juror's assurance that the threatening phone call received by her daughter had not "affected [her] ability to think or to judge in any way," against both the nature of the incident and the juror's observable agitation. United States v. Badalamenti, 663 F. Supp. 1539, 1540-41 (S.D.N.Y. 1987), aff'd, Casamento, 887 F.2d at 1187. Judge Leval grounded his decision to dismiss her from the jury on the finding that "[a] threat to the safety of one's child . . . cannot be put out of mind or disregarded," and [**51] the fact that the juror "was obviously worried, troubled and upset, and repeatedly said so." Id.
Where, however, as here, a presiding judge receives reports that a deliberating juror is intent on defying the court's instructions on the law, the judge may well have no means of investigating the allegation without unduly breaching the secrecy of deliberations. There is no allegedly prejudicial event or relationship at issue, nor is the court being asked to assess whether a juror is so upset or otherwise distracted that he is unable to carry out his duties. Rather, to determine whether a juror is bent on defiant disregard of the applicable law, the court would generally need to intrude into the juror's thought processes. Such an investigation must be subject to strict limitations. Without such an inquiry, however, the court will have little evidence with which to make the often difficult distinction between the juror who favors acquittal because he is purposefully disregarding the court's instructions on the law, and the juror who is simply unpersuaded by the Government's evidence. Yet this distinction is a critical one, for to remove a juror because he is unpersuaded by the Government's [**52] case is to deny the defendant his right to a unanimous verdict. See Brown, 823 F.2d at 596. In a case involving a juror's own request to be dismissed from duty because of what the prosecution interpreted to be an unwillingness to apply the law as instructed, Judge Mikva, in an opinion joined by Judge Bork and Judge Douglas H. Ginsburg, observed:
[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations. Thus, unless the initial request for [a juror's] dismissal is transparent, the court will likely prove unable to establish conclusively the reasons underlying it. Given these circumstances, we must hold that if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency [*622] of the government's evidence, the court must deny the request.We adopt the Brown rule as an appropriate limitation on a juror's dismissal in any case where the juror allegedly refuses to follow the law--whether the juror himself requests to be discharged from duty or, as in the instant case, fellow jurors raise allegations [**53] of this form of misconduct. Given the necessary limitations on a court's investigatory authority in cases involving a juror's alleged refusal to follow the law, a lower evidentiary standard could lead to the removal of jurors on the basis of their view of the sufficiency of the prosecution's evidence.
The rule is based upon controlling [**57] considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.