As the murder trial against Frank Johnson got under way in late 2009, prosecutors grew increasingly concerned about Juror 223′s ability to serve.

On day three of testimony, Juror 223 had asked District of Columbia Superior Court Judge Herbert Dixon Jr. if she could have access to the trial transcript, saying there were “places she missed exactly what was said,” according to court documents. The juror, whose name was not revealed in court filings, then asked if she was allowed to speak with a medical professional because she was struggling to deal with her “strong emotional reactions” to the case.

Dixon kept her on the jury, but noted the government’s concerns. Incidents involving Juror 223 continued, though, and Dixon replaced her with an alternate before deliberations began. Johnson was convicted and sentenced to 48 years in prison.

The District of Columbia Court of Appeals is weighing whether Dixon’s handling of the Juror 223 situation violated Johnson’s rights. The case involves an area of the law that relies heavily on judicial discretion, and raises some tricky questions: What behavior can get a juror removed, and what effect can that have on the outcome of a case?

Johnson is arguing that Dixon erred in replacing the juror without first offering an explanation that was in line with court rules. That error merits a new trial, Johnson claims, because had Dixon kept her on the jury, there’s evidence that she would have stood in the way of a conviction.

Arguing before a three-judge panel on June 1, Johnson’s attorney, Sloan S.J. Johnston of the D.C. Public Defender Service, said the record showed that Juror 223 was skeptical of the government’s case. She pointed to the numerous notes Juror 223 submitted to the judge with questions for government witnesses.

The case law is clear that “assessing…what’s in a juror’s mind is hard, and that a lot of times it’s not going to be possible because the record’s going to be silent,” she told the court. “But there are situations…where the record is not silent. There’s a lot of evidence about how this juror approached the case.”

Chief Judge Eric Washington expressed concern during the hearing with the idea that a juror asking questions of government witnesses was proof that he or she was leaning toward acquittal. After all, he noted, it’s the government’s burden at trial to prove a defendant’s guilt, so it’s only natural that most of a juror’s questions would be aimed at government witnesses.

The government acknowledged that Dixon may have made a mistake in how he couched his decision to replace Juror 223, but maintained that it was “harmless.” The government’s case against Johnson was “overwhelming,” Assistant U.S. Attorney Amanda Winchester argued on June 1, and there was no concrete evidence that keeping that particular juror would have hung the jury or resulted in an acquittal.

Unlike other cases where a juror was removed explicitly for asking questions that revealed a bias, Winchester said the issue of Juror 223′s purported skepticism only came up as part of Johnson’s appeal. “The concern really was with her bizarre behavior,” she told the court, especially in light of the juror’s request to see a medical professional. “That really was the concern both of the prosecutor and, we think, of the trial judge, although not explicitly stated.”

WARNING SIGNS

Juror 223′s comments that she may have missed some testimony from government witnesses were a major source of concern for prosecutors, according to the government’s brief on appeal. The testimony in question included a version of events from a man who claimed to have heard Johnson shoot the victim.

But that wasn’t the government’s only problem with Juror 223. They argued that she violated court directives about when she could review her notes. In the days leading up to the juror’s replacement, the prosecutor expressed concern that her request to speak with a medical professional could be evidence of a physical problem that should have been identified during voir dire. At one point, a prosecutor alerted Dixon that “something is wrong” with Juror 223 because, according to the brief, she had been sitting in her chair and later on the floor “hugging her knees to her chest.”

Johnson’s attorneys at trial objected to the government’s request to remove Juror 223, saying that nothing about her behavior suggested that she couldn’t serve. Her desire to carefully and regularly review her notes and submit questions for witnesses were signs that she was taking the case seriously, they argued.

The Federal Rules of Criminal Procedure spell out the two reasons a judge can replace a juror: The juror is either “unable” or “disqualified” to serve, said Gregory Hurley, an analyst with the National Center for State Courts’ Center for Jury Studies.

The problem in this case, according to briefs, is that Dixon didn’t explicitly cite either of those reasons. Instead, he explained that Juror 223 presented “unique” issues. “I don’t see that there’s any, quote, misconduct,” he told the attorneys in court. “But I believe that I have the discretionary authority” replace her. Dixon had Juror 223 effectively swap positions with the second alternate juror.

Johnson is arguing that the error warrants a new trial. The government has countered that if the judges find Dixon did make a mistake, they should only remand the case and ask Dixon to further explain his decision.

Associate Judge Anna Blackburne-Rigsby and Senior Judge John Ferren also heard the case.

Hurley said that, although there isn’t a specific process in place for removing a juror, “the cleaner way for this to occur is if the judge cited the rule and explained his reasoning.” But the reality, he said, is that “judges are making dozens of these decisions during trial and it’s very easy for something to slip through, especially if it’s an unusual situation.”

Contact Zoe Tillman at ztillman@alm.com.