Dismissal of Tardy Juror Affirmed

Eugene A. Kelly v. United States (decided March 31, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Kelly.  Trial Judge: Herbert B. Dixon.

Facts:  Mr. Kelly was convicted of first-degree murder while armed, assault with intent to kill while armed, and related firearm offenses following a jury trial that took place over several days.  The afternoon before deliberations were set to begin, the court instructed the jury to return at 10:00 A.M. The next morning at 10:00, however, Juror 211 was not present.  

After a short recess, the courtroom clerk and the government noted that the juror had been late other days.  The defense persuaded the court to take another recess, but, at 10:57 A.M., when the juror had not arrived, called, or answered court’s call or email, the judge ordered trial to proceed.

Juror 211 called to say that he was parking nearby, as the jury lined up to enter the courtroom.  The defense objected to proceeding without him.  The judge asked the courtroom clerk to find out the juror’s location but decided to move forward without him, when the government objected to further delay.  The court substituted an alternate and set a hearing for Juror 211 to show cause why he should not be held in criminal contempt.

Issue: Whether the trial court committed reversible error by discharging Juror 211.

Holding: No.  Superior Court Rule of Criminal Procedure 24(c) allows the court to replace a juror who “becomes or is found to be unable or disqualified to perform juror duties.”  This case is not like those in which the court has found breaches of Rule 24(c) because the record here supports that the removed juror was unable or disqualified to perform his duties.  Juror absence is observable and disruptive, and the court could infer that Juror 211’s tardiness would continue to disrupt, even if the juror made it to court that day.

Under Rule 24(c), a “sound basis” to replace a juror “may exist when the court has no reason to believe the juror’s arrival is imminent; when the court has reason to believe the juror’s arrival (even if imminent) will occasion further delay of the trial; or when the juror’s tardiness or other conduct indicates to the court that the juror cannot be relied upon to show up for trial on time in the future.”

The court did not have to wait to hear from the juror, where no one knew how long it would take him to arrive and the court planned to order him to show cause why he should not be held in criminal contempt, triggering concerns about the fairness of asking him to explain his absence.

Of Note: While recognizing the trial judge’s discretion to address juror attendance issues under Rule 24(c), this opinion also recognizes boundaries to that discretion.  The defendant has a “right to have his trial completed by a particular tribunal” once the jury is empaneled.  The court notes that “this would be a different case,” presumably with a different outcome, if the judge had acted “precipitously or without solicitude for appellant’s desire to retain Juror 211.”  WC

Read full opinion here.