Jury trials are fundamental to our judicial system. They work well most of the time. But, sometimes things go haywire.
In one New Hampshire murder trial, the first red flag went up when a juror asked how he could satisfy the basic constitutional requirement that the defendant be tried by a jury of his peers. Juror 13, as he was identified in court records, said that to be a peer, he had to know the defendant or know something about him. The judge pointed out that "peer" simply refers to a defendant's right to a jury of competent citizens.
During testimony, Juror 13 was seen sleeping a number of times.
He also submitted his own written questions for witnesses, apparently despite being told that was not allowed.
Prosecutors discovered that Juror 13 had served in the state Legislature, and was reprimanded by the attorney general's office over some unspecified behavior while in office. Prosecutors claimed that Juror 13's failure to disclose his familiarity with the attorney general's office, even though it was different members prosecuting this case, merited bouncing the juror.
Then, during deliberations, Juror 13 brought a legal dictionary to the jury room. He opened it, but other jurors stopped him, knowing outside materials are taboo.
Called on the carpet, Juror 13 said he wanted to look up the word "conspiracy," finding the court's definition incomplete.
The dictionary was the final straw. The judge disqualified 13, declaring it fundamental that deliberations are done by jurors with capacity to follow their oath. Over the objection of the defendant's attorney, the court ejected Juror 13 from deliberations for refusal to follow instructions.
The jury then convicted the defendant of first-degree murder and conspiracy.
On appeal, one issue was whether the defendant's right to a fair and impartial jury had been violated.
Two Massachusetts cases provided guidance. In one, a juror was improperly disqualified after talking on the phone within earshot of other jurors. The juror never discussed the substance of deliberations, only her bad relations with jurors and her holdout position. Her failure to follow instructions was held to be harmless.
The other case properly bounced a juror who, in the course of a multi-day case, went shopping, discussing deliberations with another customer. That customer was an off-duty police officer, who knew and bad-mouthed the defendant. In that case, allowing that juror back in the jury room would have tainted jury deliberations.
In our case, Juror 13's failure to follow court instructions would justify bouncing him only if his conduct demonstrably impacted jury deliberations. Here, though, other jurors nixed the contraband dictionary.
In addition, the trial court record didn't show that any of the juror's misconduct gave reason to reject him over the objection of defense counsel. The fundamental constitutional right to a full and fair trial belongs to the defendant.
So, in State v. Sullivan, decided April 18, 2008, the N.H. Supreme Court reversed murder and conspiracy convictions, sending the case back for a new trial.
Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.
