Judge's private pow-wow with juror gets guilty defendant a new trial

What do you get when you put eight strangers in the same room together? At the U.S. Courthouse during a criminal fraud trial, you get madness, and a judge's ex parte meeting with a juror who complained that another juror threatened him with violence. All this prompts the Court of Appeals to grant the defendant a new trial because of the ex parte meeting.

The case is U.S. v. Collins, decided on January 9. The trial lasted for weeks, with 22 days of testimony. Jury deliberations took a while, too. They were marked by threats and raised voices which led a court security officer to see what was going on. Jurors began writing Judge Patterson notes complaining about the lack of collegiality and the possibility of a hung jury, which no one wants (except maybe the defendant) because that means you have to start all over again.

The juror notes are recited in the opinion. The Court of Appeals (Chin, Calabresi and Carney) focuses on the foreman's note that said Juror 4 might have been trying to barter his vote and Jurors 4 and 9 almost had an altercation. The note also said Juror 4 preferred a hung jury rather than "do further evidence research." This led the trial court to meet privately with Juror 4. Without the lawyers and the parties present, the judge told Juror 4 that his behavior was "not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved." The juror said he was trying to deliberate but that it was hard to do his job when other jurors were calling him a "jerk" and "having my skin tone made fun of." The judge then told the juror to keep an open mind and try his best to deliberate. The jury went on to enter a guilty verdict on some of the charges.

New trial for defendant. This ex parte meeting amounted to a supplemental jury instruction, and it resembled an Allen charge, where a judge tells a deadlocked jury that it's important to reach a verdict. Supplemental jury instructions cannot be given outside the presence of counsel and their clients. This was not harmful error. Here's why, says Judge Chin:

We cannot say, with "fair assurance," that the district court's errors in this case did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case. Had the court initially shared the Note with counsel and solicited counsel's input before responding, any mistaken impressions might have been avoided.