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Young v. Johnson9/20/2001
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Johnson argues that the judge erred in excusing Juror #8 because he lacked sufficient evidence that the juror was unable to continue her service. Young responds that Juror #8's comments to the judge supported a conclusion that she "might be too distracted by the death of her god daughter to properly focus on the trial," and the judge therefore appropriately excused her.
Although we are unaware of any Arizona case that has discussed the attributes of a sufficient reason to excuse a juror from continued service, we agree with other courts that "' here must be some 'sound' basis upon which the trial judge exercise his discretion' to remove the juror." Green v. Zant, 715 F.2d 551, 555 (5th Cir. 1983) (quoting United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978)); see also United States v. Fajardo, 787 F.2d 1523, 1525 (11th Cir. 1986) (quotation omitted) (decision to remove juror entrusted to sound discretion of judge "'whenever facts are presented which convince the trial judge that the juror's ability to perform his duty as a juror is impaired'"). If the juror's inability to continue to serve is evident to the judge, a hearing on the issue is unnecessary. Green, 715 F.2d at 555-56; see, e.g., Cherry v. Dir., State Bd. of Corr., 635 F.2d 414, 416 (5th Cir. 1981) (en banc) (sudden death of juror's parent); Henderson v. Lane, 613 F.2d 175, 176 (7th Cir. 1980) (heart attack of juror); Rodriguez, 573 F.2d at 331-32 (juror fails to appear and reports by telephone his preference to go to work); United States v. Cameron, 464 F.2d 333, 334 (3rd Cir. 1972) (juror sleeping in court). When a juror's disability is less certain or obvious, however, the judge must sufficiently inquire about the situation in order to properly exercise judicial discretion. Green, 715 F.2d at 556; see, e.g., United States v. Franks, 511 F.2d 25, 37 n.19 (6th Cir. 1975) (court questioned juror before dismissing for nervous condition).
Turning now to the situation presented in this case, we initially note that if Juror #8 had asked to be excused from the jury in order to attend the funeral, the judge could have decided that continued service would have been an undue hardship for the juror, thereby justifying her excusal without the need for further inquiry. See, e.g., Cherry, 635 F.2d at 417. Indeed, after informing Juror #8 that he could not recess the trial, the judge apparently assumed that she would want to be excused from the jury, but Juror #8 quickly dispelled this assumption:
THE COURT: So we'd like to just go ahead and excuse you to go ahead and do what you need to do with your family, okay?
JUROR #8: I don't really [indiscernible]. I want to be here.
THE COURT: You want to be here?
JUROR #8: I want to be here.
THE COURT: Our problem is I can't recess the trial.
JUROR #8: That's fine . . . Then I won't go -I won't go to the services tomorrow. I'm okay - I'm okay with that, really.
Once Juror #8 stated that she did not need to attend the funeral and preferred to remain on the jury, any inability on her part to continue on the jury became less certain or obvious, and the judge was required to make a sufficient inquiry before excusing her. See Green, 715 F.2d at 556.
We have reviewed the videotaped record of the meeting between the judge and Juror #8 and conclude that the judge failed to sufficiently ask the juror about her ability to continue on the jury. Instead, the judge tried to convince the juror that she should attend the funeral rather than continue on the jury. Immediately after Juror #8 stated that she would forego the funeral and stay on the jury, the judge revealed his p
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