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The Court of Appeals of Georgia has ruled that a jury foreman should not have been removed from a case for telling jurors to “go to hell” during deliberations, so the defendant is entitled to a new trial on drug-dealing charges in Lowndes County, Ga. The appeals court ruled 4-3 on July 7 that Southern Judicial Circuit Chief Judge H. Arthur McLane abused his discretion when he dismissed the foreman solely for using vulgar insults. The ruling did not name the foreman. After deliberations began, the foreman told a juror to “go to hell.” Later, a member of the deadlocked jury told the judge that one juror was cursing and insulting others by saying, “You’re monkeys” and “You’re stupid.” McLane did not determine whether the foreman was the one accused of making the remarks. The jury deadlocked at 10-2 in favor of conviction, according to Judge Debra H. Bernes’ appeals decision. The foreman was one of the two supporting acquittal, and after McLane removed him, the jury returned with a conviction in 16 minutes. Bernes wrote that the foreman did not threaten jurors physically, and McLane had not tried a less drastic approach, such as admonishing the deadlocked jury to deliberate with civility. “While we certainly do not condone the use of vulgar or coarse language among jurors, ‘total placidity is not in the nature of jury deliberation,’” wrote Bernes, quoting from U.S. v. Tallman, 952 F2d 164, a 1991 decision of the 8th U.S. Circuit Court of Appeals. Bernes said that handling heightened tensions in the jury room is part of the job for a juror, and she found no testimony that the foreman’s coarse language prevented the jury from deliberating further. Presiding Judge J.D. Smith and Judge John J. Ellington joined Bernes’ opinion. Judge A. Harris Adams concurred in judgment only as to the issue of whether the juror’s conduct warranted a new trial. Presiding Judge G. Alan Blackburn, joined by Judges Gary B. Andrews and M. Yvette Miller, issued a dissent saying the foreman should have been removed because his behavior defied the court’s instruction to decide the case based upon its evidence. “This juror’s tactic of verbal abuse to intimidate other jurors to change their opinions perverted the deliberative process,” wrote Blackburn. The case was argued first before a three-judge panel of Bernes, Blackburn and Miller. Cases are sent to seven-judge panels when a three-judge panel cannot come to a unanimous conclusion. Because Blackburn and Miller were in the dissent from the subsequent 4-3 ruling, it appears that they outvoted Bernes on the original panel. On the larger panel, Bernes, who has been on the bench for six months, found three judges to join her in the majority. Blackburn argued that the majority went too far in deciding that the use of offensive language during deliberations never can be the basis to remove a juror. That conclusion limits the power of trial judges — who see the jury firsthand — to rein in a wayward juror who “is on a verbal rampage to intimidate other jurors into accepting his point of view,” Blackburn added. Arnold v. State, No. A05A0222. The winning attorney, sole practitioner Edith M. Edwards said the Lowndes County jury featured some influential citizens who were used to getting their way. She said that a foreman saying “go to hell” should not disqualify him from deliberations. “I told the judge, in this day and age, with everything we hear, that is not such a big deal,” Edwards said. She represented George Arnold, who in 2002 was charged with selling cocaine. J. Bennett Threlkeld, the assistant district attorney for the Southern Judicial Circuit who tried the case, said no decision has been made on whether to appeal to the Georgia Supreme Court. “Everyone expects there to be disagreement. That’s healthy. That’s part of the process,” Threlkeld said. “My main concern is a case not become so abusive that a decision is made not exactly out of fear, but intimidation.” Threlkeld said he’s not sure where the line should be drawn between healthy, heated disagreement and unhealthy intimidation among jurors. When the defense lawyers and prosecutors learned of the deadlock in deliberations, they agreed that McLane probably would need to declare a mistrial. But the prosecution later moved to have the foreman dismissed on grounds that he was trying to intimidate other jurors into agreeing with him. The prosecution contended that the deadlocked jury’s 10-2 split resulted from “coercion, not true discussion.” With the foreman dismissed, the jury returned a guilty verdict. Citing Georgia code, Bernes wrote that reasons to replace a juror include death, illness or the court finding “other good cause” that the juror is “unable to perform his duty.” However, she said, removing a juror for the wrong reasons can violate a defendant’s rights to a fair trial and due process. In this case, Bernes said, the trial judge needed to ensure that the deadlocked jury’s majority didn’t want to oust the foreman just to make it easier to convict the defendant.

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