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Young v. Johnson9/20/2001
REVERSED AND REMANDED
A jury awarded Diane Young compensatory and punitive damages for the assault and battery she suffered at the hands of Charles Johnson, her former husband. On appeal, Johnson challenges the judgment on several grounds, but the following issue is dispositive: is Johnson entitled to a new trial because the trial court erred by excusing a juror from further service on the fourth day of the seven-day trial? Because we answer this question affirmatively, we must reverse and remand for a new trial.
FACTUAL AND PROCEDURAL HISTORY
Young and Johnson were married in February 1993. The marriage was stormy, and the couple ultimately divorced in September 1997. Young eventually sued Johnson for assault, battery, and intentional infliction of emotional distress. She also asserted a claim under the Violence Against Women Act, 42 U.S.C. ยง 13981 (1994) ("VAWA") (held unconstitutional in United States v. Morrison, 529 U.S. 598 (2000)).
Trial commenced on May 18, 1999, and nine jurors were empaneled to decide the case. From the outset, the jurors actively submitted written questions to witnesses. See Ariz. R. Civ. P. 39(b)(10) ("Jurors shall be permitted to submit to the court written questions directed to witnesses . . . ."). Juror #8 was particularly active in submitting questions. Johnson contends, and Young does not dispute, that by the end of the fourth day of trial, Juror #8 had submitted 43 questions to witnesses called by Young. The juror generally presented her questions as testimony unfolded and before Johnson had an opportunity to conduct cross-examination.
During an in-chambers conference held in the afternoon on the fourth day of trial, a Friday, Young's attorneys expressed their concern that Juror #8 was advocating Johnson's position through her questions and inappropriately communicating with other jurors after her questions were answered. The judge responded that he had "neutralized" some of the questions by re-phrasing them. After explaining their fear that Juror #8 had already decided the case, Young's counsel asked if it would be appropriate to question the juror about "what's going on." The judge indicated that he had been aware of the problem from the first day of trial and stated that he would give the matter thought over the weekend and perhaps confer with other judges about how to handle the situation.
Before recessing the trial for the day, the judge instructed the jurors to keep their questions to witnesses as fair and neutral as possible. After excusing the jury, the judge and counsel met in chambers to discuss various issues. At that time, Young's attorneys again complained that Juror #8 was inappropriately communicating with fellow jurors. They also described her as appearing "smug" while she penned her adversarial questions "as though she . . . is doing the defense job ." The judge ended the discussion by stating that he was "concerned enough that [he would] deal with it at some level."
On the morning of the fifth day of trial, Young filed a motion to dismiss Juror #8 and argued that the juror's questions to witnesses revealed clear bias against Young. The parties argued the motion to the court prior to resuming the presentation of evidence to the jury. During argument, the judge observed that nine out of ten questions submitted by Juror #8 favored the defense and had an adversarial tone. Eventually, the judge took the motion under advisement, stating that, in light of his admonition to the jury given on the previous trial day, he wanted to observe how Juror #8 asked questions before ruling on Young's motion.
Before the judge recessed the in-chambers proce
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