Un jury vicié

For years, your life has been crashing around you. You were a corporate president; now, you are a criminal defendant. The jury has reached a verdict, and you wait to find out whether you will be found guilty of a poorly defined crime that could nevertheless send you to prison for years.

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The conviction handed down by this vitiated jury should be vacated.

The announcement comes: Guilty. You watch as the judge asks each individual juror to confirm the verdict which, by ancient tradition and constitutional right, must be unanimous. One by one the jurors confirm it . . . until Juror 10. She says no.

Then the judge throws her off the case, and the eleven remaining jurors plus one alternate, after a little deliberation, convict you unanimously.

That’s what happened to Bradley Stinn, court papers show. It shouldn’t happen to anyone. By removing Juror 10, citing a conversation the juror had with a relative, the judge largely deprived Stinn of two key protections that the Sixth Amendment right to a jury trial is meant to provide. The conviction handed down by this vitiated jury should be vacated, as Stinn is now asking a federal court in New York to do.

First, and fundamentally, a jury trial is supposed to take conviction out of the hands of the judge. Nearly eight centuries ago, the clause of Magna Carta protecting the ancestor of the jury called it iudicium parium suorum—the judgment of [the defendant]’s peers. This reflected an unwillingness to permit a royal official to exercise the power to convict. In the eighteenth century, those who fought the American Revolution likewise valued the jury as a guard against government officials, including judges. That’s why the Declaration of Independence faults the King for “depriving us in many cases, of the benefits of Trial by Jury.”

But a judge who knowingly removes the only juror standing in the way of a conviction comes close to seizing the power jury trials are meant to deny him. If no alternate takes the seat, removing the juror creates a unanimous jury and, unless someone changes his mind, produces conviction. Even when there is an alternate, replacing the juror means replacing a vote to acquit with a possible vote to convict.

Second, one advantage of a jury that is required to reach a unanimous verdict whether it convicts or acquits, is that if even a single juror is not convinced, all the jurors must continue to scrutinize the evidence and their reasoning. Thus if the holdout juror has recognized some truth that requires acquittal, but that the other jurors did not recognize, she can force the other jurors to consider the reasons for her doubt.

But removing the holdout juror frees the other jurors from that obligation—and denies them that opportunity. If Juror 10 understood something the others didn’t, they never got to understand it, because she was removed. Thus the judge removed from the jury room not merely one citizen, but an idea, possibly even a correct idea, that might have led to Bradley Stinn’s acquittal.

This is not to say that the judge was biased against Stinn. Perhaps—indeed, presumably—the judge believed, as he said, that the juror’s conversation with a relative so compromised her that she could not effectively serve. Perhaps the judge just wanted the case over, and would have been equally glad to dismiss a holdout juror if the jury had been divided 11-1 in favor of acquittal. But the law regards a person as intending what he knows will be the result of his action—if, for example, I fire a gun in order to show you that it works, and not because I want to kill the person at whose head I know the gun is pointed, legally speaking I have intentionally killed him. In this sense of intent, the judge intended to stop Juror 10 from preventing Stinn from being convicted.

It seems highly unlikely that the conversation with a relative, or any of the other peccadillos (such as stepping out of the jury room to speak to a court officer) attributed to Juror 10, made it impossible for her to reach a verdict based only on her own evaluation of the evidence and arguments presented in court and the instructions of the judge. But even if this were so, Stinn requested a mistrial and should have received one. A judge who knows one juror is all that stands between a defendant and a conviction should not remove that juror and leave in place the eleven who want to convict.

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