New York Federal Criminal Practice Blog
April 19, 2009

Second Circuit Affirms Verdict of Eleven Jurors

“Eleven Angry People” doesn’t have a very poetic ring, but (some will be surprised to learn) it’s enough to convict someone of a crime in federal court.  In fact, Hasan Simmons has first-hand experience of this scenario, and the loss of one of his jurors because her child was ill is one of the issues in United States v. Simmons, 2009 WL 674154 (2d Cir. March 17, 2009).  Before this juror was excused, the jury was clearly divided – sending out two requests for the reasonable doubt instruction, and a deadlock note.  Thirty minutes after she was excused, the newly constituted jury of eleven returned a verdict of guilty. 

Fed.R.Crim.P. 23(b)(3) permits a jury of 11 jurors to return a verdict “if the court finds good cause to excuse a juror.”  Here, the district judge permitted a jury of eleven to return a verdict after one juror called in to say that she had to remain at home to take care of sick child.  The defense challenged the decision on the grounds that the court had failed to ascertain how long the juror would be unavailable for service.  Reluctantly affirming the conviction, the Court acknowledged this was a “close” case:

The district court here was not required to conduct a further inquiry after determining that a one-day absence supported dismissal. But this is only because the court also found that waiting an additional day before continuing deliberations risked the absence of another juror, who had alerted the court that extended jury service would cause financial hardship, and who would miss additional work days if deliberations were delayed. Without basing its decision on this additional factor, we have serious doubts as to whether the district court’s decision would have been a permissible exercise of discretion, as the decision lies at the margins of that discretion.

The defense also argued that the juror had been excused “on a pretext to remove an obstacle to reaching a unanimous verdict,” because “the jury was split and could not reach a unanimous decision.”  Rejecting this argument on factual grounds, the Court nonetheless noted that “[t]he course of deliberations prior to a juror’s absence is relevant to the determination of whether to excuse a juror, and a district court might consider evidence of a divided jury to counsel restraint before excusing a juror.” 

Although not adopting a per se rule that a court should always inquire into the expected length of a deliberating juror’s absence, Simmons is still a useful precedent to support such a principle.  After all, the Court notes, conducting an inquiry is “certainly a better practice than foregoing such inquiry.” 

Lawyers: Sabrina Houlton, Joseph Martini, Wiggin and Dana LLP, (defendant); AUSAs John Zach, Katherine Polk Failla

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