There's a jury flurry in the federal courts. Last week the D.C. Circuit held that prosecutors can strike blind jurors. This week the Supreme Court heard argument on jurors who doubt the death penalty. Yesterday in a case called U.S. v. Murphy, the Ninth Circuit explored the thin line -- if there is a line at all -- between stipulating to an eleven-person jury, which you can do under Rule 23 of the Rules of Criminal Procedure, and stipulating to a non-unanimous jury, which Rule 31 says you can't. The case features an Instant Decision Moment, a television-worthy dramatic climax, and an odd result.
Three jury notes
Murphy was tried for fraud in a government contract. The jury sent out three notes. The first one read:
“We have a dissenting point of view with one juror that will have no possible position change and requests no evidence or willing to participate.”
The judge told them to follow the instructions; eventually they sent out a second note asking to hear some testimony again. Then they wanted to deliberate some more, and eventually they sent a third note:
“A juror is not willing to deliberate[,] not open to any additional information[,] her opinion is firm and says it will not change. We are working on it = Please give us direction.”
(The note was "in the less than perfect form common in such notes," the Ninth Circuit explains.)
The defense did what?
I bet you expected Murphy's lawyer to cheer: hung jury, mistrial, call it a win! But the trial must have gone well, because instead (and here's the Instant Decision Moment), the defense stipulated to send the holdout juror home and continue with eleven jurors. In the next half hour, two things happened: the remaining eleven jurors reached a unanimous verdict, and the dismissed holdout insisted on giving the judge a note of her own.
It was a moment out of Celebrity Poker, but with more at stake. If the eleven were on Murphy's side, he was a genius to dismiss the twelfth. If they weren't, he wasn't. His cards, the three jury notes, were on the table.
The judge was holding the handwritten stipulation, the holdout's note, and the verdict. She put the holdout's note down first. The juror said:
“After listening to the full . . . [testimony,] and after listening to the transcript and given the instructions we have received, I can’t find the defendant guilty beyond a reasonable doubt. If I were to change my vote, it wouldn’t be what my conscience is telling me is right. At worst this is negligence. I’m not convinced, based on all available information, the defendant is guilty beyond a reasonable doubt. That is not reasonable to me.”
Damn.
When cases turn on odd details
The Ninth Circuit held Murphy to his bet, finding the guilty verdict was the unanimous vote of eleven jurors, not the divided vote of twelve.
It's the kind of decision that's hard to explain to your friends and family, since the conviction ends up turning entirely on the irrelevant fact of where the holdout was at the time of the verdict. Either way, eleven jurors voted without her, with the defendant's consent. But if the trial judge had accepted the vote without dismissing the holdout first, the Ninth Circuit would have reversed. Since she was sent home, the conviction stands. Or, as Shaun Martin at California Appellate Report said more neatly, you can "accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31."
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Political note:
The Murphy opinion had a dissenter, Eighth Circuit Senior Judge John R. Gibson, sitting by designation. (Judge Gibson argued that while Rule 23 says you can stipulate to eleven jurors, it doesn't say you can stipulate to dismiss a particular individual.) Robert Loblaw at eNotes explains that the split bucks both courts' reputations and shows how the Ninth Circuit is changing:
A Ninth Circuit panel divides 2-1 in a criminal case. The dissenter is sitting by designation from the Eighth Circuit. If you’re like me, you’re probably thinking that the majority voted in favor of the defendant. But we’d all be wrong. Take seven new Dubya appointees, join them with a small posse of Reagan and Bush Senior appointees, add in a couple of moderate Clintonites, and you’ve got a Court that is steadily reversing its long-standing reputation as a champion of civil liberties.
(Photo by Kevin Labianco at http://www.flickr.com/photos/kevinl8888/119712943/; license details there.)
