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The Case of the Holdout Juror
By Kelly Flaherty
The Recorder, July 27, 1998

In the classic trial movie "l2 Angry Men", Henry Fonda faces down 11 fellow jurors who are ready to send a man to the electric chair.

The movie demonstrates how one juror who refuses to capitulate to the majority can stand between an innocent man going free and going to prison.

But not all "holdout" jurors are as persuasive or noble in purpose as Fonda.

Some become intransigent and refuse to deliberate further, or adopt a creative interpretation of the law that has little to do with the judge's instructions or facts in the case.

In a case that could sharply define both judges' and jurors' rights and responsibilities, the California Supreme Court has agreed to take up the question of when a judge can remove a holdout juror accused of misconduct.

An Alameda County judge who has repeatedly removed such jurors is on the hot seat in People v. James Metters, A074986. Retired Municipal Court Judge Joseph Jay, who sits by appointment on the Alameda County Superior Court, has removed jurors in three Alameda County cases over the past three years.

His other juror removal cases - People v. Hightower, A081424, and People v. Buffkins, A068798 - have also been appealed. Hightower has yet to be heard by the court, but Buffkins was upheld by the First District Court of Appeal in 1996, with a lone dissent by Justice William Stein.

In March, the First District upheld Jay's decision to remove the juror in Metters, but Justice J. Anthony Kline offered a vehement dissent.

Kline characterized the juror's dismissal as an abuse of judicial discretion that violated the defendant's constitutional right to a unanimous jury.

As is true with most cases of juror holdout, the three before Judge Jay involved jurors who held out for a not-guilty verdict and in the process felt the frustration and even the wrath of the majority.

Alameda County Deputy Public Defender Kimberly Kupferer, who represented James Metters on a robbery charge, said a trial judge's duty is to protect the lone holdout. She said that because juries serve as the conscience of the community they should be allowed to reach their own conclusions about a case and stick to their guns.

Not surprisingly, most prosecutors view California's constitutional requirement of a unanimous Jury verdict in criminal cases with considerably less reverence.

In fact, the California District Attorneys Association has tried for years to do away with the requirement of unanimous jury verdicts, A state Senate bill that would have allowed a 10-2 guilty verdict in non-death penalty cases failed two years ago, and CDAA has been unable to gather enough signatures to put an initiative on the ballot,

"Statistically it is pretty incredible to get 12 people in a room together who don't know each other to agree on anything," said David LeBon, a prosecutor and spokesman for the CDAA,

LeBon argues that one rogue juror can derail a two-month jury trial, forcing the courts to start the costly, time consuming process over again. That can be a problem for prosecutors he said, especially if a witness leaves town or is reluctant to testify again.

"In sexual assault cases, for example, getting a child witness to testify again can be difficult for everyone," he said.

Oregon and Louisiana are the only states to have adopted non-unanimous jury verdicts in criminal cases since the U.S. Supreme Court allowed them in 1972 with its decisions in Johnson v. Louisiana, 406 U.S. 356 (1972), and Apodaca v. Oregon, 406 U.S. 404 (.1972), Unanimous verdicts are stilt a constitutional requirement in federal trials.


Few reliable statistics are available on the number of hung juries in California, but according to a 1996 survey by the Los Angeles County public defender's office, 13 to 15 percent of felony trials in that county ended in hung juries over an 18-month period. Of those/ 21 percent hung 11-1, with five out of seven leaning towards a guilty verdict.

Statistics from the Los Angeles district attorney's office show roughly the same average 13 to 15 percent of hung verdicts between 1989 and 1995. According to the DA's office, 70 to 80 percent of the homicide cases that went back for a new trial resulted in guilty verdicts.

Criminal attorneys and experts interviewed for this article agreed that it's still rare for a judge to remove a juror after deliberations have begun, particularly if the juror is a lone holdout for a not-guilty verdict.

But apparently not for Judge Jay.

"Judge Jay has done this a number of times," said John Ward, the defense attorney handling the Metters case before the Supreme Court.

While case law allows judges to remove jurors for either refusing to follow the law or to deliberate with other jurors. Ward argues that was not the case in Metters.

In fact, the holdout juror deliberated for two days before sending the judge a letter saying that she understood his instructions and had followed the law but came to a different conclusion.

"Sometimes the holdout juror is a little nuts, but that wasn't the case here," said Ward.

When Jay excused the juror, he wrote that 11 jurors said they believed Juror No. 4 had not been truthful in her answers during jury selection. Jay added that the other jurors "have been striving valiantly and have courteously tried to accommodate juror four with a purpose of having her give reasons for her position, and that juror four has simply refused to do so for the most part,"

When she did attempt to explain her position, Jay said that the juror sought to add facts and elements that were not in the instructions or the evidence.

Judge Jay declined to comment on the Metters case while it is on appeal, and said he thinks the detailed record of his interviews with jurors in the case speaks for itself.

But Albert Alschuler, a University of Chicago criminal law professor who has written about juror misconduct said Jay's pattern of removing holdouts raises serious questions about whether the judge is tipping the scales in favor of the prosecution.

"It seems to me that this judge is on very dangerous ground," said Alschuler. "You have a right to be tried by 12 jurors, including jurors who disagree with the judge."

Judges walk a fine line when they decide to investigate juror misconduct. New jury instructions introduced this year encourage jurors to inform the court if one of their colleagues refuses to deliberate or shows bias, which increases the likelihood that a judge will get involved and question panelists. Yet a judge is required to respect the privacy and the sanctity of jury deliberations.

Case law also remains divided on when a judge should remove a juror after deliberations have begun.

A 1996 decision by the Second Circuit U.S. Court of Appeals overturned a federal judge's decision to remove a juror deemed "unwilling to follow the law." In that case, U.S. v. Grady Thomas, 116 F3d 606, the trial judge removed the only black juror in a felony drug case in which all of the defendants were black, saying the juror refused to convict "because of preconceived, fixed, cultural, economic, or social . . . reasons that are totally improper and impermissible."

The Second Circuit agreed that a juror may be dismissed if the evidence clearly shows his or her intention to "nullify" a verdict on the basis of racial, cultural or political biases. But the appellate court reversed, saying the trial judge's interviews with jury members indicated that the juror may have followed instructions and was simply unpersuaded by the prosecution's case.

Other controlling federal cases, such as United States v. Brown, (D.C. Cir. 1987), and United States v. Hernandez, (2nd Cir, 1988), clearly hold that even the possibility that a juror was discharged because he or she had doubts about the prosecution's case threatens the defendant's constitutional rights under the Sixth Amendment.

Alameda County Deputy Public Defender Clifton Taylor, who directs the superior court calendar for that office, said judges should not second-guess a juror's reasoning.

When the court assembles a jury, Taylor said, it is "asking members of the community to bring their own, nonlegal experience to bear. If not, what is the point of having a jury trial?" he asks.

But California law gives judges more discretion than most federal circuits.

In upholding Jay's decision to dismiss the juror in Metters, the majority cited cases from the Fifth and Ninth Circuit Courts of Appeal and California precedent.

Rejecting the strict standard adopted by the Second Circuit inBrown , First District Justices Ignazio Ruvolo and Paul Haerle cited a case from the Second District Court of Appeal, People v. Feagin, 34 Cal.App.4th (1995). In Feagin, the appellate court upheld a judge's dismissal of a juror for personal bias and for "prejudging" the credibility of police officers who testified at trial.

Richard Iglehart, a deputy district attorney in Alameda County for 23 years and now the chief assistant prosecutor in San Francisco, said the law makes it clear that a holdout juror cannot be removed merely for disagreeing with fellow jurors.

"But sometimes you get a juror who camps out in the corner with a book and says 'I'm voting no and don't bother me,'" said Iglehart. "In that situation that law allows a judge to dismiss that juror."

In the end, the decision is left to the discretion of the trial judge/ who must make a detailed record of his interviews with jurors and explain his or her reasons for removing a juror,


Although 23-year-old James Metters admitted during his trial that he had robbed a Wendy's restaurant in Oakland, he argued that he was forced to commit the crime because he had been kidnapped and threatened at gunpoint earlier in the day by drug dealers to whom he owed money.

His story was backed up by witnesses, including his aunt, who testified that he called the same day asking for money. After his aunt brought him $50, Metters said the drug dealers released him and gave him one hour to return with $200 or they would "do a drive-by" on his aunt's house.

An Oakland police sergeant also testified that, prior to the Wendy's holdup, Metters had contacted police and asked to have his parole revoked because he feared for his life. He told the officer that someone had shot at him and said he owed drug dealers $500.

The sergeant said she reported the incident to Metters' parole officer and took no further action.

Metiers' attorney, Alameda County PD Kupferer/ argued that Metters committed the crime out of necessity and while under duress.

But Jay denied the request to instruct the jury on the necessity and duress defenses, saying Metters had alternatives to robbery, including going to the police once the dealers released him or asking his aunt for more money.

Jay did instruct the jury on specific intent whether Metters intended to permanently deprive the cashier of the money when he robbed her, pretending to have a gun.

On the second day of deliberations 11 members of the jury sent Jay a note asking that juror No. 4, the foreperson, be removed.

"That juror is unwilling to evaluate the facts in the case based on the law given," the note read. Judge Jay responded by reinstructing the jury on their duty to follow the law and participate in deliberations.

Later in the day, the jury sent a second note asking what it should do if one of the jurors defines specific intent differently from the others.

Jay responded by instructing the jury again on specific intent. He said that jurors could take into account the events leading up to the robbery in deciding the issue, but he added that specific intent went directly to whether Metters intended to permanently deprive the cashier of her money when he robbed her, and not why he robbed her.

Another note soon followed asking that juror No. 4 be excused "due to her bias."

At this point Jay began to interview jurors, including a new foreperson, to find out whether misconduct had occurred and whether the juror should be excused for cause.

On the third day of trial juror No. 4 sent the judge a note saying she had come to a different conclusion than her fellow jurors.

"I believe that I have applied the law and all the instructions which the court has given me to the best of my ability. I am unable and unwilling to endure another day of deliberations like today. I believe that the jury cannot reach consensus. The other jurors cannot accept that I have reached another conclusion. They want only a unanimous verdict. I am unable to come to the same conclusion as they have. I therefore ask to be excused immediately."

Other jurors said that she had started reading a book in the jury room as a way to avoid further discussion.

After interviewing the jurors individually. Jay dismissed juror No.4 on grounds that she refused to deliberate and showed a bias toward the defendant.

In his dissent, Justice Kline points to testimony from the jurors that shows the holdout was reluctant to deliberate further because she felt badgered by the others, but that she was not necessarily biased.

For example, at one point juror four said she would be able to change her vote if the other jurors convinced her she was wrong, but added "I'm not willing to deal with what went on in there yesterday. They are not trying to convince me that I am wrong . . . They are trying to convince me that I am stupid."

Kline also took the trial court to task for delving into the thought processes of the jury.

"The judicial investigation that took place in the present case was stimulated by a note from the foreperson of the jury requesting that juror four be removed 'due to her bias,' in that 'she is unfairly sympathetic to the defendant.' It is hard to imagine a clearer signal that the removal of this juror was sought because 'she questioned the sufficiency of the government's evidence' wrote Kline.

"Not only did the trial court ignore this red flag and proceed to interrogate each of the 12 jurors as to the nature of the alleged 'bias, but he pinpointed the exact nature of the dispute . . . This judicial conduct, repeatedly condemned by federal courts as a violation of a criminal defendant's Sixth Amendment right to a unanimous verdict, has never been approved by any California Court until today."

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