Should Judges be Allowed to Dismiss a Juror Based on His Intent to Nullify?

In 1997, the Second Circuit ruled in United States v. Thomas (116 F.3d 606) that a district court could remove a juror from service during trial if the district court uncovered evidence that a juror intends to ignore the law when deciding a verdict. While the Second Circuit ruled that the district court erred in removing a juror in the particular facts of the Thomas case, the Second Circuit has paved a way for district courts to remove jurors from the jury who are unwilling to apply the law to the facts as the court instructs.

                The Thomas case involved numerous black defendants being tried for drug trafficking. During voir dire, the prosecution attempted to strike the last black left on the jury panel by using a peremptory strike. The defense raised a Batson challenge. Even though the prosecution claimed it wanted to dismiss the juror because he would not meet the prosecutor’s eyes when asked a question, not because the juror was black, the district court incorrectly held that Batson would not allow the prosecution to strike the only black juror from the panel. Because he was not stricken from the panel, the sole remaining black juror panel member served on the twelve person jury.

                During trial, six of the other jurors complained that the black juror, referred to as Juror 5 in the opinion, was causing a disturbance. Other jurors accused Juror 5 of causing distractions by squeaking his shoes against the ground, by rustling cough drop wrappers and by verbally agreeing with the defense attorney when the defense attorney made a point. At the prosecution’s urging, the judge held interviews with each juror to see the possible disruptive effects that Juror 5 might have on deliberations. The trial judge decided Juror 5 would remain on the jury.

                After the jury retired to deliberate, multiple jurors expressed concern that they would not be able to reach a verdict as Juror 5 was refusing to engage in deliberations, and announced he would not vote to convict under any circumstances. Accounts from jurors showed that Juror 5 was causing trouble beyond his refusal to agree with other jurors. Juror 5 “holler[ed]” at fellow jurors and pretended to vomit in the bathroom while other jurors ate lunch next to the bathroom door. However, one juror claimed that the other jurors were “picking on” Juror 5.

                When interviewed by the trial judge, Juror 5 claimed he was deliberating as instructed, and wanted “substantive” evidence before he would convict. After considering the evidence concerning Juror 5’s behavior, the judge decided to remove Juror 5, and reduced the jury to 11 members. The judge reasoned that Juror 5 was refusing to convict for “reasons that are totally improper and impermissible.” After Juror 5’s dismissal, the remaining jurors found three defendants guilty on all charges and the other three defendants guilty of multiple charges.

                The Second Circuit ordered a new trial because the trial court improperly dismissed Juror 5. The Second Circuit ruled that Juror 5 could have been dismissed for intending to nullify, but the trial court needed stronger evidence that Juror 5 intended to nullify. The Second Circuit reserved the right for a court to dismiss a juror from service if suitable evidence exists that the juror intends to nullify.

                Despite the controversy over the Second Circuit’s ruling in Thomas, some circuits have adopted the rule established by the Second Circuit. The court’s attempt to create an ability to dismiss a juror after he has been selected to serve on a jury makes the court appear to be ensuring the verdicts come out as the court instructs. If that is the desired outcome of the Thomas case, then it is a big step towards defeating the purpose of the jury, and a direct assault on jury nullification.

Prior to Thomas, the court’s ability to remove a juror was limited by their ability to prove that the juror intends to ignore the law for impermissible reasons. Under Thomas, the judge can remove jurors one by one if they don’t follow his or her instructions. Thomas makes it seem like the court is trying to turn juries into a rubber stamp on its decisions, making it seem to many defendants that the jury system is rigged against them.