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“One man’s life has been ruined. How can we ruin another?” a juror asked during deliberations last week in a San Francisco murder trial, posing a question that ultimately got him booted from the panel. The provocative query came when the jury was locked at 11-1 for convicting Daniel Atlas, accused of killing a barker at a North Beach neighborhood strip club. The holdout’s fellow jurors sprung into action, sending a note to chambers that they were concerned the juror couldn’t follow the law. It was a delicate situation for Superior Court Judge Kevin Ryan. He had to decide how to make a proper inquiry into potential juror misconduct without denying the defendant’s rights. Ryan questioned the jury foreman, then each of the jurors individually in open court. They felt their fellow juror could not “follow the law in his heart of hearts,” the judge concluded. After a hearing with defense counsel and prosecutor, Ryan dismissed the juror and replaced him with an alternate. He relied upon a case decided in January by the First District Court of Appeal, People v. Hightower, 00 C.D.O.S. 760. The 2-1 decision sought to lay out for trial courts the extent to which they can delve into such issues during jury deliberations. Ryan had intimate working knowledge of the appellate court case. He had been the prosecutor of Felix Hightower in an Alameda County, Calif., jury trial for stabbing his mother to death and then setting her home on fire. In the Hightower case, Justice Patricia Sepulveda was joined by Justice Timothy Reardon in holding that “an inquiry into suggested jury misconduct in deliberations is entrusted to the trial court’s sound discretion.” The Hightower jury facts were similar to the matter before Ryan. Jurors in that case complained in notes to the court that one of them couldn’t follow the instructions, while also showing a bias. In the case before Ryan last week, defense attorney Michael Gaines argued that instead of replacing the juror, Ryan should have declared a hung jury. “It’s frustrating to me that what I saw here in open court is majority rule versus unanimity, which is the substance of the jury system,” Gaines said. Prosecutor Braden Woods argued that the juror’s opinion was not based on the law, but rather that he was “purely basing his decision on pity for the defendant.” Gaines argued that through “this questioning process in open court, not within the jury room, and engaging in an individual colloquy with the court, [jurors] cement the position that they have.” But Ryan replied, “I determined that I needed to speak to the rest of the jurors in order to perform my mandatory duties in this case as directed by Hightower, and that is why the scope of the inquiry was as broad as it was.” The judge added, “The court has to make sure that there is a basis to determine whether or not good cause exists to remove a juror. “And, frankly, I don’t know how I am otherwise supposed to do that unless I speak to these folks and see what is exactly the problem.” Ryan also said the juror not only said he would not follow the law, but also said he would vote for conviction but, when polled, would deny it was his verdict. “There appears to be to me a state of mind in this juror that suggests either because of emotions or for other reasons, he cannot perform his duties as required under the law,” Ryan added. He replaced the juror and ordered the panel “to disregard all past deliberations and begin anew. … Do not allow your renewed deliberations to be colored either by the court’s actions in this matter or by strong emotions aroused by the events.” The jury resumed deliberations and within five hours returned a second-degree murder conviction.

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