Under “Unique Facts,” Ninth Circuit Vacates Conviction Because Judge Improperly Dismissed a Juror Hours into Deliberations

In United States v. Litwin, No. 17-10429 (9th Cir. Aug. 27, 2020), the panel hold that the district court violated a defendant’s Sixth Amendment right to a unanimous jury verdict when it dismissed a juror hours into deliberation, based on findings that lacked support in the record.

Fed. R. Crim. P. 23(b)(3) permits a court to dismiss a juror for “good cause,” though this is cabined by the Sixth Amendment’s concern for preserving jury unanimity. Dismissal is improper “if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence.” As the panel notes, “[b]ecause a jury must be in universal agreement to convict, it does not take much to see that removing a juror merely because she disagrees with her fellow jurors on the proper outcome of the case would provide an obvious end-run around the unanimous jury verdict guarantee.”

In this case, two defendants – a doctor and a medical assistant (Litwin) – were tried on charges of conspiracy to distribute a controlled substance, and distributing a controlled substance. The doctor was 93 years old (he died during the appeal), whose health necessitated short trial weeks and thus a prolonged trial.

Juror 5, at the center of this case, sought to be excused after she was selected but before the trial commenced. She was formerly a criminal and civil attorney in her native Philippines, and at the time of trial worked at a major Las Vegas law firm as a paralegal. She emailed the court to say that her office would not guarantee that she would be paid her salary for the length of the trial.

The judge denied Juror 5’s request, telling her in court that “I would be happy to call in your firm. I’m, frankly, quite surprised that your firm, which has many cases pending in this Court, would not cover you for the full term of your service because I’m certain that they’ve requested juries and enjoyed the benefits of service by jurors much like yourself, but I – I don’t want to call them in without alerting you that I would do that because I don’t want to place you in a bad situation with your employer.” The Courtroom Administrator later testified that Juror 5 seemed uncooperative and complained that she would have to work six to seven hours after every day of trial.

A ten-week trial followed. On March 22, 2017, the “case was submitted to the jury at approximately 9:40 a.m., and the jury began deliberating that morning.” Within hours, the court received a note from Juror 8 that “[w]e have a jur[or] that says no matter what, she will not change her mind.” The recalcitrant juror was Juror 5. The judge called Juror 8 into court with counsel to examine whether Juror 5 was, in fact, refusing to participate. It led to this exchange:

“THE COURT: Okay. And once the evidence came in, did the juror refuse to consider the evidence at all or did she consider it?

“JUROR NO. 8: She completely refused.

“THE COURT: In the outset?

“JUROR NO. 8: From the outset.”

Juror 8 also testified that Juror 5 appeared to be “confused” by one of the instructions and “getting stuck on one part of the sentence.” The court then summoned Juror 10, who confirmed that Juror 5 “just doesn’t want to hear anybody else’s opinions or statements or review anything.”

Finally, Juror 5 was herself called into court, over the defense counsel’s reservation “that [she] may simply have a certain view of the evidence and the court should remind her of the instructions to deliberate and see if she is willing to abide by them.” The opinion includes the entire transcript of the exchange with Juror 5 (it runs six pages), in which she admits that she told her fellow jurors several times that she would not change her mind, but also testified that “I am willing to [deliberate]. In fact, I have done that.” She apologized for making the remarks, while also stating that judge did not understand the context.

“Over defense counsel’s objection, the court then informed Juror 5 she had been discharged.” The district court made findings on the record about Juror 5’s (1) “potential malice toward the judicial process” and (2) “unwillingness to deliberate.”

During the appeal, the district court – upon learning that the dismissal of Juror 5 had become the focus of oral arguments (and that the Ninth Circuit ordered supplemental briefing on the topic) – made a sua sponte entry on the docket further elaborating the reasons for the dismissal. The entry cited Juror 5’s continued hostility during trial about not being dismissed at the outset: “What is … not apparent from the record is that the refusal of the court to dismiss her resulted in bitter and ongoing complaints from Juror No. 5 throughout the entire trial. Because the court does not interface directly with jurors except on the record, this information was being relayed to the court by the courtroom administrator. The overwhelming weight of the evidence supporting a finding of guilt, along with her express refusal to participate in deliberations, resulted in the ultimate finding that the juror was not acting in good faith and needed to be dismissed.”

The Ninth Circuit vacates, holding that the record failed to support the district court’s findings of good cause and that the court thus abused its discretion. Good cause may embrace a wide variety of situations: sickness or family emergencies, blatant juror misconduct, inability or unwillingness to follow the law. “Yet the panel also notes the settled law that “when faced with a juror who refuses to agree with other jurors about the strength of the government’s case, the court has two options: ‘declare a mistrial or send the juror back to deliberations with instructions that the jury continue to attempt to reach agreement.’”

Thus, citing “a juror’s alleged failure to deliberate” is a yellow flag. “If a juror has reached a decision, at what point is potential unwillingness to alter that position a failure to deliberate as opposed to a reflection of the juror’s sincerely held view of the evidence presented? Is a perceived disinterest in entertaining the views of other jurors a refusal to follow the jury instructions or merely an expression of disagreement with the opinions of fellow jurors?” The standard is that “if the record evidence discloses any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case, the court must not dismiss the juror.”

The panel considered each of the findings cited by the district court. The first, “potential malice toward the judicial process,” fails because none of the testimony suggested “that Juror 5 made comments indicative of a bias against the judicial process.” If anything, Juror 8 testified that Juror 5 was confused  or stuck, not implacable, while Juror 5 herself testified that she was willing to move forward and made no “comments reflective of a bias against the court.” In sum, “[t]he transcript does not show a potential malice toward the judicial process, or one that overcomes Juror 5’s repeated statements indicating her willingness to continue deliberating.” The panel also rejected the proffer of additional testimony found in the district court’s sua sponte docket entry, citing “serious due process concerns.”

The second cited reason for dismissing Juror 5, “unwillingness to deliberate,” also fails. While two jurors testified to Juror 5’s recalcitrance,“ the original jury note that prompted the inquiry “appeared to convey that the jury had a disagreement about the case itself, because the note said the jury ‘cannot come to a decision’ and ‘no matter what’ a juror ‘will not change her mind.’” Juries often find themselves with one or two holdouts, but this goes right to whether the government has made its case. The same with disputes about the meaning of jury instructions: “Jurors’ discussions about the language of jury instructions occur in the context of considering the case and measuring the evidence against the instructions.” Combining “the text of the jury’s note and Juror 8’s testimony about discussions with Juror 5 concerning a jury instruction, the statement that a juror will not change her mind ‘no matter what’ is one that, on this record, reflects ambiguity.”

Making matters murkier still was that “Juror 5 asked for an opportunity to give ‘context’ for her statement that she was not going to change her mind no matter what, and apologized if that statement implied an unwillingness to deliberate. The district court did not allow Juror 5 to explain herself and was clearly trying to avoid delving into the jury’s deliberations.” The panel finds no basis “for declining to give the jury a further opportunity to continue deliberating, including with re-instructions as necessary.”

Because the panel finds that the juror’s dismissal was not harmless beyond a reasonable doubt, it vacates the conviction and returns the case for retrial.

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