What justifies removing a recalcitrant juror in a murder trial?

Even in the most prominent murder trials, jurors usually make the news just once: When they deliver a verdict.

They have no public face, as photographing them during a trial is prohibited, lest that lead to their being pressured by parties to the case. Once chosen to hear evidence in a trial, they do not speak in court unless questioned.

That veil of obscurity was blown askew during two recent Columbus murder trials, when the conduct of jurors became the public’s focus.

In each allegedly gang-related case, jurors were among the witnesses questioned, and two were dismissed for misconduct during deliberations.

The most recent

In the latest trial involving a fatal 2015 shootout between rival motorcycle clubs, the jury foreperson acknowledged contacting someone about the evidence during deliberations, despite the judge’s direct orders not to talk about the case with anyone outside the jury room.

Jurors are to render a verdict based solely on the evidence they hear in court. Judges repeatedly instruct them to read no news reports about the trial, to stay off social media, to discuss the evidence with no one until they debate it privately during deliberations – and that means NO ONE, at all, including immediate family.

The woman serving as foreperson in the biker trial found out a friend of her husband’s used to be affiliated with one of the motorcycle clubs, so she texted him to ask about club protocol, and then she reported his answer to other jurors, who were outraged.

Removing her was an easy decision for Judge Bobby Peters: He first called in a complaining juror to ask what the foreperson had said, then had her come in and admit it. The circumstances were clear: She openly had defied the judge’s instructions. The defense attorneys did not argue against replacing her with an alternate.

The newly reconstituted jury found the defendants not guilty of murder. Not-guilty verdicts are final; they lead to no appeal and no retrial. Guilty verdicts may be appealed. Mistrials can result in retrials.

The mall murder

The case before that was much more complicated, and the issues raised inevitably will be addressed on appeal.

Defense attorneys argued vehemently that Judge Frank Jordan Jr. should not have replaced the first foreperson in the trial of three Crips convicted of gunning down a man at Peachtree Mall in 2016.

The woman who had volunteered to serve as foreperson was the lone holdout opposed to finding one of the defendants guilty, and her conduct raised the question of whether she deliberately was blocking deliberations or simply sticking to a strongly held conclusion.

Two days after deliberations began in the trial of three charged in the March 26, 2016, fatal shooting of Anthony Meredith, Jordan got written notice that the jury foreperson was disrupting the process.

He called the entire jury in to ask about its progress, then had individual jurors stand for questioning. Four said the foreperson was trying to intimidate others and deliberations had ceased.

Jordan then had each of the four come in alone for questioning. They told him that after making vague threats and insulting another juror by calling her “Dr. Phil,” the woman had refused to participate in discussions and secluded herself away from the others. She had decided the defendants were not guilty after only two hours of debate, they said.

Jordan called in the foreperson, who said she felt that the evidence was insufficient, and that the other jurors too quickly had decided the defendants were guilty.

Defense attorneys moved for a mistrial, based on a hung jury.

Prosecutors moved to replace the foreperson, based on misconduct.

Substitutions happen

It is not unusual to replace a juror with an alternate – one of two or three people qualified as jurors in case the original 12 can’t continue because of illness, family emergencies, accidents, or other causes.

Jurors occasionally are called away because of a family medical emergency or funeral. Some simply don’t have the stamina to endure a lengthy trial. In one particularly heated case, a military veteran with post-traumatic stress disorder asked to be excused from deliberations because of the stress.

So, substituting an alternate under those circumstances is not rare. But substituting an alternate because of juror misconduct is, said District Attorney Julia Slater, the six-county Chattahoochee Judicial Circuit’s top prosecutor, and Steve Craft, the circuit’s chief assistant public defender.

When the juror replaced is the lone holdout against a guilty verdict, it is an issue defense attorneys raise on appeal, citing court precedents on replacing jurors during deliberations.

Here’s the Georgia law on replacing jurors:

“The trial court has discretion at any time whether before or after final submission of the case to the jury to replace a juror if the juror dies, becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause.”

Jordan in his order removing the foreperson gave these findings:

• The foreperson did not threaten the other jurors nor did she unduly pressure them or intimidate them into changing their opinions.

• The foreperson was impeding the jury’s progress, having made up her mind and removed herself from the deliberations two hours after jurors got the case.

• Fellow jurors said the woman “removed herself from the table and positioned herself in the corner of the room away from the other jurors, and she refused to communicate her reasons for her state of mind. She further stated that she would not deliberate any longer and asked to be removed from the jury.”

• “Multiple jurors stated that that in order to proceed with deliberations, they had to act as if it was an 11-person jury, including when it came to voting on guilt or innocence.”

In support of his decision, Jordan cited the Georgia Court of Appeals ruling Mason v. State, decided May 9, 2000.

Mason v. State

The Mason in Mason v. State was Charles Mason, charged with rape and child molestation. Two days into deliberations, a woman on his jury sent the judge a note saying she was the lone holdout against a guilty verdict, and she did not want to continue deliberating, because she needed to get back to her business. The judge neglected to inform Mason’s attorney of this, and sent back a note telling her to keep deliberating.

When the defense attorney heard about the juror’s note, he moved for a mistrial based on a hung jury.

The holdout juror later left the jury room altogether and sat alone in the courtroom. The foreman eventually asked that she be replaced by the alternate.

The juror twice was called into the courtroom for questioning, on the last occasion telling Mason’s attorney she had listened to other jurors and made up her mind, and did not believe her view would change with further discussion. The judge replaced her, again denying defense motions for a mistrial.

With the alternate, the new jury reached a guilty verdict in less than three hours.

Mason appealed, and the judge was reversed.

“There was no showing that the juror was unable to fulfill her duties, and no other legal cause for dismissal was shown,” the appeals court ruled. “While the juror clearly was concerned about getting back to her business, such concern does not amount to a legal cause for dismissal. ... Contrary to the trial court’s ruling, the juror did not fail to deliberate, but instead had reached her decision after having fully deliberated for more than two days.”

Jordan cited Mason v. State to distinguish it from the mall murder, writing “the juror in this case also appears to be a holdout juror, but distinguishes that case (Mason) in that the juror who was wrongly replaced had been a part of the deliberations for over two days and had simply made up her mind. Here, (the juror) had only been deliberating for two hours before nearly identical behavior as the removed juror in Mason. Furthermore, unlike in Mason, all parties have been promptly notified of each juror letter and have been able to confer before action was taken.”

Semega v. State

Defense attorneys moving for a mistrial cited the Georgia Court of Appeals case Semega v. State, decided March 17, 2010.

The Semega in that case was Abdoulea Semega, charged with rape. His jury deadlocked with a lone holdout, who the jury foreman said refused to consider the evidence. The judge called the juror in for questioning.

“Your honor, I have listened to every bit of the words that has went on in this court, and in my heart, what I have heard and seen, I just do not believe this man is guilty,” the juror testified. Asked if he had considered all of the evidence, he said, “Yes, sir. To the best of my knowledge, I have done that.”

The judge relied on the foreman’s view that the juror was just stubborn and uncooperative, and replaced him. Semega was convicted, and the judge was reversed on appeal:

“Alternate jurors do not serve to substitute for minority jurors who cannot agree with the majority,” the appeals court wrote. “There must be some sound basis upon which the trial court exercises his discretion to remove the juror. Dismissal of a juror for want of any factual support, or for a legally irrelevant reason is prejudicial.”

The appeals court added that “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. ... Under the circumstances, further investigation would have been necessary to establish additional evidence of failure to deliberate or juror misconduct before resorting to the extraordinary step of replacing a juror with an alternate.”

Jordan in his ruling emphasized that he had further investigated the jury foreperson’s conduct and decided she had refused to continue to deliberate.

He also had determined the foreperson had not, as others alleged, tried to threaten or intimidate other jurors. Had that been the case, the appropriate precedent would have been a much more colorful account of jury deliberations from the Georgia Supreme Court ruling State v. Arnold, decided May 8, 2006.

State v. Arnold

The Arnold in State v. Arnold was George Arnold, accused of selling cocaine.

Deliberations had begun when the jury in Arnold’s case asked for a new foreman, alleging the foreman told another juror to go to hell.

After questioning the jurors and the foreman, the judge replaced the foreman based on evidence he “humiliated, insulted, and cursed at other jurors during deliberations.” The state Supreme Court upheld removing him, as he had admitted under questioning that he had called other jurors stupid and compared them to monkeys.

“In this case, the trial court did conduct an investigation into the foreman’s behavior and developed some factual support for its decision to remove the foreman for a legally relevant reason,” the justices wrote.

“During the trial court’s initial questioning, it ascertained that the foreman had an altercation with at least one other juror and that, during this altercation, he may have told the juror to go to hell or, at the very least, that if he or she did not like his behavior he or she could just leave…. In addition to merely cursing, the foreman was actively humiliating other jurors through the use of vindictive personal attacks wholly unrelated to the important issues being considered by the jury. When combined with other behavior of the foreman, it cannot be said that the trial court abused its discretion in removing the foreman from the jury.”

Passionate arguments are expected in jury deliberations, the justices wrote, but some standards of conduct must apply:

“While the jury room may be an appropriate place for heated debate, and cursing may sometimes occur, it does not follow that jurors must be immunized from removal for behavior which the trial court, in its broad discretion, determines to be subversive to the goals of justice.”

The lone holdout

Craft, the Chattahoochee circuit’s chief assistant public defender, said that removing a juror for misconduct is rare, but it is not as rare as it used to be, thanks to wireless connections and social media.

Before anyone could get online anytime and anywhere, juries were much more isolated.

“We are seeing more jurors replaced across the country for using their smart phones to research questions and bringing that information into the jury room,” he said. “In years past, on occasion a juror would go home and ask friends about something in the case, but that was rare.”

Replacing the lone holdout during deliberations always subjects the trial judge’s decision to increased scrutiny, requiring appeals courts to weigh whether the juror was impeding deliberations or holding firm to a thoughtful conclusion.

“Generally, a juror could not be replaced just because they are the sole hold out in an 11-1 split,” Craft said. “A juror is never required to forgo a strongly held belief if they have considered the evidence in reaching that belief. However, refusal to participate in any meaningful way in the deliberations or disrupting that process could be bases for removal.”

At the end of the mall murder trial, the alternate replacing the foreperson also became a lone holdout. When the new jury came back with guilty verdicts, defense attorneys asked Jordan to poll jurors individually to ask whether each agreed.

The replacement juror said “guilty” was not her freely given verdict.

Defense attorneys again moved for a mistrial. Jordan refused. He charged jurors to reach a unanimous verdict and sent them back to the jury room.

The same thing happened in Semega v. State, noted Mark Shelnutt, one of the defense attorneys, who said Mason v. State also supported defense moves for a mistrial.

In Semega, the appeals court wrote: “The case before us presents just such a situation as in Mason, with the additional factor that a second juror originally agreed with the replaced juror, thus indicating still more strongly that the juror had not refused to deliberate but had simply reached a different decision than that of the other jurors. A holdout juror is not subject to dismissal for failing to acquiesce to the other juror’s conclusions regarding the persuasiveness of the evidence.”

Jordan cited Mason to distinguish it from the mall murder trial, stressing he had developed a record of the removed juror’s misconduct and kept all the attorneys informed of the steps taken, unlike the judge in Mason. But Shelnutt said the defense maintains the Mason and Semega rulings so nearly match the circumstances of the mall murder trial that they justified declaring a mistrial rather than replacing holdout jurors.

If Jordan is overruled on appeal, the three people convicted and sentenced to life in prison for killing Anthony Meredith could be granted a new trial.

This story was originally published June 3, 2017 at 7:00 PM with the headline "What justifies removing a recalcitrant juror in a murder trial?."