Former Governor George Ryan has been found guilty. Old news, sure. But whether the verdict is likely to stand, or will be reversed on appeal, remains of serious concern because of lingering questions regarding the jury.
Two jurors, Robert Pavlick and Evelyn Ezell, were removed from the jury over a week after deliberations began, because they allegedly lied on their juror questionnaires. Of these, it appears that Ezell’s removal may prove to be of particular significance on appeal. Describing herself to reporters as a source of discord on the jury because she held out in support of the defendants, Ezell was removed from the jury because she had denied having ever been charged with a felony. In fact, Ezell had been charged, but later found not guilty in a felony drug dealing case. "One of the questions I misunderstood.... I thought that if something is kicked out of court [it would not matter]," she told the Chicago Tribune.1 During deliberations, Ezell told the press, she vehemently defended Ryan and his co-defendant Larry Werner against what she described as a "miscarriage of justice."2
So if nothing else, Ryan and Werner will be on fairly strong footing when they argue to the appellate court that a juror was excused midway through deliberations who might have (had she been allowed to remain) persuaded other jurors to change their minds and vote "not guilty." Why should this matter? Rent a copy of "Twelve Angry Men" and ask yourself: What would have happened if, midway through the movie, Henry Fonda’s character disappeared from the screen only to be replaced by the visage of a trial judge, explaining to the remaining jurors that Fonda had been excused for reasons that would not be explained. Suppose the judge then instructed that jury to disregard everything they had done so far and begin anew with someone else replacing Fonda in the room. Evelyn Ezell may not be Henry Fonda. But her significance as a participant in the process (like Pavlick’s) will certainly be of some concern when Ryan’s conviction goes up on appeal.
Putting aside any other questions that may arise from the way in which this jury reached a decision,3 therefore, Ryan and Werner’s appeal from the jury’s verdict in this case is likely to emphasize two questions: First, whether the court acted within its discretion in electing to excuse Ezell and Pavlick (or in declining to excuse the foreperson, Sonja Chambers) after deliberations had begun.4 And second, whether a mistrial should have been granted once it became clear that the case could not be decided by the original jury which had begun deliberating its outcome.
A. The Reasons for Excusing Ezell and Pavlick.
Whether Ezell’s removal was appropriate to begin with is sure to be a bone of contention on appeal. In a number of jurisdictions, after all (particularly since there was no questioning before trial regarding whether the jurors even understood the questionnaires), an explanation such as the one Ezell provided would have been deemed sufficient and she would have been allowed to remain on the jury through the end of deliberations.5 In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court found that a post-trial finding of juror dishonesty does not justify overturning the verdict unless it can be shown that the jurors’ misstatements clearly establish that he or she had so strong a bias as would have supported a challenge for cause.6
So, as the Second Circuit explained in U.S. v. Langford, 990 F.2d 65, 38 Fed. R. Evid. Serv. 1141 (2nd Cir. 1993):
The Court [in McDonough] observed that ‘one touchstone of a fair trial is an impartial trier of fact – a jury capable and willing to decide the case solely on the evidence before it ... The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.’ McDonough, 464 U.S. at 554, 104 S.Ct. at 849. The Court noted, however, that the judicial system cannot be held to a standard of perfection, and that unless the correct disclosure would have provided a basis for a challenge for cause, a new trial was not required: ‘[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial. 464 U.S. at 556, 104 S.Ct. at 850....
We read this multi-part test as governing not only inadvertent non-disclosures but also non-disclosures or misstatements that were deliberate, for though the McDonough Court began with the inadvertent response before it, it stated that the further showing of cause must be made even after a juror’s ‘failure to answer honestly,’ and it hypothesized that there could be various ‘motives for concealing.’ Concurring in the judgment, Justice Brennan similarly stated that a second element—bias— should be required even if the juror’s erroneous response was deliberate. Thus, he stated that the proper focus when ruling on a motion for new trial in this situation should be on the bias of the juror and the resulting prejudice to the litigant.... Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or intentional, are simply factors to be considered in the determination of actual bias. 900 F.2d at 67.
The court in Ryan presumably elected to excuse two jurors during the deliberations because evidence was presented (although that evidence is still under seal) which demonstrated that, not only had these jurors misstated the truth in their questionnaire answers, they had done so in a manner which demonstrated that they had actual biases which would justify a challenge for cause. That Ezell makes claim to the contrary, and that she represented at least some hope for acquittal, is thus of particular significance because it brings the Ryan decision directly within the ambit of the Supreme Court’s decision in McDonough.
B. Group Dynamics as a Constitutionally Protected Aspect of Trial by Jury.
Until the late 1990s, the various circuit courts appeared to be largely in agreement that, after a jury began its deliberations, alternates were to be excused so that the possibility of a jury being recomposed after deliberations began was unlikely at best.7 The landscape changed, however, when Rule 24(c)(3) was amended in 1999 to provide that:
Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations. anew.
Since this amendment to Rule 24(c)(3), the federal courts have repeatedly found that it may be permissible to substitute a juror after deliberations have begun. The Seventh Circuit, for example, found in U.S. v. Johnson, 223 F.3d 665 (7th Cir. 2000), that the 1999 amendment to Rule 24 changed the landscape so drastically that the possibility a juror was substituted during deliberations might be of no consequence whatsoever:
We find guidance to the proper resolution in the 1999 amendment to Rule 24 of the Federal Rules of Criminal Procedure, which, altering the previous practice..., allows the trial judge to replace a regular juror with an alternate during deliberations, which must then recommence. Fed.R.Crim.P. 24(c)(3). In other words, the fact that the alternate missed some of the deliberations is no longer regarded as a fatal objection, or indeed as any objection, to his participating in the jury’s decision.8
Since the 1999 amendment, however, there also do not appear to have been any Constitutional challenges to Rule 24(c)(3).9 So, the rules themselves may have changed since the 1990s (when the various circuit courts not only agreed that a substitution should not be allowed during deliberations, they had a host of reasons to offer as to why not). But the reasons for those original holdings have never been really challenged. As matters stand, therefore, it is entirely likely that Ryan will still be going even after the Seventh Circuit has its say on the subject.
The Supreme Court has held that the parties to a jury trial are entitled to expect that the jury’s deliberative process as a group will not be unduly hampered. In Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978), the Court thus found that:
The Sixth Amendment mandates a jury... of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community.... Because juries frequently face complex problems laden with value choices, the benefits [of maintaining a group dynamic] are important and should be retained. In particular, the counterbalancing of various biases is critical to the accurate application of the common sense of the community to the facts of any given case.
The individual perspectives of jurors in a given case are thus, as a Constitutional matter, less important than the views of the group itself. The group dynamic of the jury is of utmost concern, at the end of the day, because the jury’s role is to consider, deliberate and render a decision as a cross-section of the community. As the Supreme Court concluded over a hundred years (long before the rules were amended or the social scientists had taken their poke at the subject):
While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself.10
It is thus at least clear, as one author concluded, that if an alternate juror is brought in midway through the deliberations, that change in the status quo is bound to have at least some effect:
An alternate’s subsequent presence in the deliberation room dissolves the jury’s sanctity, especially if the alternate has had contact with the outside world... An alternate placed into a jury after deliberations begin undermines the group dynamics involved in the deliberative process. When an alternate juror enters deliberations, he or she is forced into a coercive atmosphere. Both federal courts and the drafters of the Federal Rules of Criminal Procedure recognize that this coercive atmosphere may pressure the alternate to prematurely agree with the original jurors.11
Baker’s conclusion takes on a certain ring of familiarity when one considers the facts known to date with regard to how the Ryan trial played out.
The foreperson remained the same, having been chosen long before the alternates joined in, so a hierarchy was already in place that was bound to have at least some coercive effect. And the alternates, in turn, eventually joined a majority which (we know from Ezell’s statements) was already predisposed to render a guilty verdict.
There is authority to support the trial court’s decision in Ryan, to be sure.12 And there would be evidentiary hurdles to get past in order to bring out any post-trial evidence from the jurors.13 But there are also a number of reasons why, given the unique circumstances of this case, either the trial court may yet choose to declare a mistrial or, as the case finds it way up on appeal, the jury’s decision in Ryan may eventually be reversed.
In U.S. v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed.2d 508 (1993), Justice Stevens said in his concurring opinion that Rule 24 (as it was constituted before the 1999 amendments) was "based on certain premises about group dynamics that make it difficult for us to know how the jury’s deliberations may have been affected." In Ryan’s case, those premises are bound to be tested.
1 David Heinzmann and Richard Wronski, Different Views, Different Result?, Chicago Tribune, April 18, 2006 available in http://www.chicagotribune.com/news/nationworld/chi-0604180301apr18,1,4346021.story
3 Although it is interesting that the foreperson had already been elected when the two alternates were brought in and that they were thus denied an opportunity to participate in at least that aspect of the decision making process, despite the judge’s instructions that the process begin anew. And there is likely to be at least some argument on appeal over whether the alternates who came in could fairly decide the case given that they had been released from the judge’s instructions to disregard press reports during the period after they were initially excused from the jury and then brought back in to join the deliberations.
4 See Matt O’Conner, David Heinzmann and Ray Gibson, Controversy Swirls Around a 3rd Ryan Juror, Chicago Tribune, April 19, 2006 available for review online at http://www.chicagotribune.com/news/nationworld/chi-0604190205apr19,1,6115498.story (Chambers had herself been a party to two prior lawsuits, although she said "no" when asked as much on the questionnaire. The court declined to excuse Chambers from the jury, however, for reasons that were not yet public as of the writing of this article).
5 See U.S. v. Langford, 990 F.2d 65, 38 Fed. R. Evid. Serv. 1141 (2nd Cir. 1993) ("Though James intentionally failed to give truthful information in response to the voir dire, the court found, after the evidentiary hearing, that she did so only to avoid embarrassment."); Gilbert v. State, 262 Ga. 840, 426 S.E.2d 155 (1993) (The party objecting to the juror continuing to sit after disclosure of an error in the juror’s voir dire answer has the burden to show manifest prejudice).
6 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). See also U.S. v. Buckhalter, 986 F.2d 875 (5th Cir. 1993); Zerka v. Green, 49 F.3d 1181, 1995 FED App. 104P (6th Cir. 1995) (same). See also 50A C.J.S. Juries § 506 (Discharge of juror before completion of trial—Discharge or substitution during deliberations) ("In dealing with all aspects of the problem of discharging a deliberating juror, the utmost caution must be taken to avoid invading the province of the jury."); 50A C.J.S. Juries § 504, Discharge of juror before completion of trial—Substitution in general ("Some authorities hold that, where a juror selected in a case is discharged, the court may replace the juror with an alternate juror. However, other authorities hold that a juror cannot be replaced after the jury has been impaneled.").
7 See State v. Lehman, 108 Wis. 2d 291, 311-312 (Wis. 1982) ("The Ninth Circuit Federal Court of Appeals has held that Rule 24(c) mandates discharge of the alternate juror and prohibits substitution after final submission."); United States v. Virginia Election Corp., 335 F.2d 868, 872 (4th Cir. 1964); United States v. Huntress, 956 F.2d 1309, 1317-18 (5th Cir. 1992); United States v. Stratton, 779 F.2d 820, 831-32 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S. Ct. 2285, 90 L. Ed. 2d 726 (1986); United States v. Gambino, 788 F.2d 938, 948-49 (3d Cir.), cert. denied, 479 U.S. 825, 107 S. Ct. 98, 93 L. Ed. 2d 49 (1986) ("Although Rule 23(b) does not explicitly bar use of the substitution option, the text of the amended rule, together with Rule 24(c)’s direction to discharge alternate jurors before the jury retires, signals to us that substitution is quite inconsistent with the intent of the drafters of the Rules.").
8 See also Battle v. U.S., 419 F.3d 1292, 18 Fla. L. Weekly Fed. C 821 (11th Cir. 2005).
9 But see U.S. v. Dixon, 79 Fed.Appx. 456 (2nd Cir. 2003) ("To the extent that defendant argues that Rule 24(c) is unconstitutional in that it allows substitution of alternates after deliberation has commenced, defendant forfeited this argument by failing to raise it in the district court.").
10 Allen v. U.S., 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). See also Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex L Rev 1041, 1082 (April, 1995) ("Earlier research efforts ignored or undervalued the group deliberation process, perhaps because it takes place behind closed doors and is therefore difficult to study."). See also Sentell, The Georgia Jury and Negligence: the View from the Trenches, 28 Ga. L. Rev. 1, 82-83 (Fall, 1993) ("A huge consideration for plaintiff’s lawyers favoring jury awards turns upon the group dynamics phenomenon."); Ammons, Mules, Madonnas, Babies, Bathwater, Racial Imagery and Stereotypes: the African-American Woman and the Battered Woman Syndrome , 1995 Wis. L. Rev. 1003, 1056 (1995) ("[S]ocial and demographic characteristics, jury composition, and group dynamics may influence a verdict.").
11 Baker, Post-Submission Juror Substitution in the Third Circuit: Serving Judicial Economy While Undermining a Defendant’s Rights to an Impartial Jury Under Rule 24(c), 41 Vill L Rev 1213, 1249-50 (1996). See also McDermott, Substitution of Alternate Jurors During Deliberations and Implications on the Rights of Litigants: the Reginald Denny Trial, 35 BC L Rev 847, 851-52 ( July, 1994) ("Central to the proper functioning of our jury system is the deliberation process. To deliberate is ‘to ponder or think about with measured careful consideration and often with formal discussion before reaching a decision or conclusion.’ In the context of the American judicial system, deliberation is the procedure where the jury, analyzing information within the secrecy of the jury room, discusses and weighs the evidence presented in an effort to reach a verdict based on the law applicable to the facts. . . To encourage the unfettered contributions of all jurors, both courts and the drafters of the Federal Rules of Evidence vehemently protect the secrecy surrounding the deliberation process.").
12 See also Opinion of Justices, 137 N.H. 100, 105 (N.H. 1993) ("Requiring that the trial court instruct the jury to set aside and disregard all past deliberations and begin deliberating anew is, therefore, essential to satisfying the defendant’s constitutional right to a fair and impartial jury."); Burtley v. State, 476 N.E.2d 835, 836 (Ind. 1985) ("A regular juror may be discharged and replaced by an alternate juror until return of the verdict"); State v. Stallings, 246 Kan. 642, 646 (Kan. 1990) ("[A] defendant has no right to the original twelve jurors."); People v. Dry Land Marina, Inc., 175 Mich. App. 322, 328-329 (Mich. Ct. App. 1989) ("[T]here is no violation of a defendant’s right to trial by a fair and impartial jury when an alternate juror is recalled and substituted for a deliberating juror excused by the trial court.").
13 FRE Rule 606(b) has been amended (effective December, 2006) to provide that: "Inquiry into validity of verdict or indictment.—Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."
Ted A. Donner is the manager of Donner & Company Law Offices LLC in Wheaton and an adjunct professor with Loyola University Chicago School of Law. His book, Jury Selection: Strategy & Science (3d Edition) was cited by defense counsel in the Ryan case in support of their motion for a mistrial.
Bridget Longoria is a recent graduate of Loyola University Chicago School of Law who recently completed an internship with Magistrate Judge Denlow and is working as a law clerk with Donner & Company Law Offices LLC in Wheaton.