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An Eastern District of New York judge’s decision to dismiss a juror for refusing to deliberate in a murder case has been upheld by the 2nd U.S. Circuit Court of Appeals. Exploring the fine distinction between juror nullification and a juror’s failure to be convinced by the evidence, the 2nd Circuit said that while Senior Judge Jacob Mishler erred in asking a recalcitrant juror if she felt the defendants were “unfairly prosecuted,” the judge was correct to rule the case could proceed with 11 jurors. The ruling came in United States v. Baker, 00-1502, the murder prosecution of a mother and her son, Rosie Baker and Vance Baker, who were accused of killing Dr. Daniel Hodge in connection with a Medicaid fraud scheme. Following the dismissal of juror Nora Hunt, the panel went on to convict the Bakers, and Judge Mishler ordered them to serve life behind bars. Two hours after the jury began deliberations, Mishler received a note from the jury reading, “We have one juror who says that the evidence is not going to change her mind. She has a feeling and that’s it. She refuses to deliberate on any of the counts. She won’t even look at the evidence.” After consulting with the lawyers, Mishler instructed the foreman to identify the juror by name. During an interview with the judge, Hunt at first said she had agreed to follow the law, had considered the evidence and had reached her conclusion “based on the evidence.” When asked if she felt the Bakers were being unfairly prosecuted, Hunt said “in some way,” and went on to say that she had reached her conclusion during “the last day” of testimony. Mishler found that Hunt “decided this case during summation by counsel,” and that she had refused to participate in deliberations only a half hour after they had begun. Three hours after Hunt was sent home, the remaining 11 jury members convicted the Bakers. On the appeal, Judge Pierre Leval said that Mishler was correct to dismiss Hunt under Rule 23(b) of the Federal Rules of Criminal Procedure. “In our view, the district judge acted within [his] discretion in carefully interviewing Juror Number 12; in excusing her on the grounds that she had improperly made up her mind prior to the beginning of deliberations and refused to engage in deliberations with the other jurors; and in allowing deliberations to proceed with 11 jurors,” Leval said. PRECEDENT IN ‘THOMAS’ Lawyers for the Bakers had argued on appeal that Judge Mishler’s decision should have been reversed in light of the 2nd Circuit case, United States v. Thomas, 116 F.3d 606 (1997). In Thomas, the trial judge had removed a juror who had engaged in nullification. “We ruled that, in such cases, where the issue of the juror’s removal arises from his refusal to vote in accordance with the evidence, the court must take pains to avoid the risk that the juror is in fact being removed ‘because he is unpersuaded by the government’s case,’ ” Judge Leval said. But in rejecting the argument offered on behalf of the Bakers, Leval said the difference between the Thomas case and the Baker case is “subtle, but important.” “The stringent rule announced in Thomas applies to removal of a juror by reason of the juror’s determination to vote without regard to the evidence,” he said. “It is based on the difficulty in detecting the difference between a juror’s illegal act of nullification, by deciding to vote against the weight of the evidence, and the juror’s failure to be convinced of the defendant’s guilt.” The ruling in Thomas, he said, was made in order to guarantee the right to a unanimous jury, and “to protect the defendant against efforts to achieve unanimity by removing jurors who disagree with the majority.” And, under Thomas, he said, it has to be clear that “the motivation for the removal is not in fact the juror’s nonconforming view of the sufficiency of the evidence to convict.” But in Baker, Judge Leval said, Hunt was not removed because of her “nonconforming” view of the evidence, but for “her admitted refusal to perform her duty as a juror by deliberating together with the other jurors.” JUDGE’S ERROR Leval went on to say that Judge Mishler’s question to Hunt about the defendant’s being unfairly prosecuted was “an error in judgment.” “It would have been a safer and better course to concentrate on the issue of the juror’s willingness or unwillingness to deliberate, avoiding insofar as possible the issue of the various jurors’ view of the merits, and the proportions of any split among jurors,” he said. “Nonetheless, we recognize that it is often difficult to steer such interviews clear of revealing the juror’s views.” On a separate issue, the 2nd Circuit vacated the Bakers’ convictions on one of the counts in the indictment — murder with intent to obstruct justice — finding that the jury was improperly charged on that one count. It then remanded the case for resentencing. Second Circuit Senior Judge Roger J. Miner and Chief Judge Frederick J. Scullin of the U.S. District Court for the Northern District of New York, sitting by designation, joined in the opinion. Steven R. Kartagener represented the Bakers. Assistant U.S. Attorneys Gary R. Brown, Emily Berger and Joseph Conway represented the government.

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