Second Circuit declines en banc review on 11-juror conviction

The Second Circuit has decided not to hear a case en banc that would clarify when a criminal defendant is entitled to a new trial after an 11-member jury finds him guilty, rather than the 12-member jury as required under federal statute.

The case is United States v. Johnson, issued on July 14. A federal statute gives you a 12 member jury. But, to put it mildly, the Supreme Court has never squarely said that smaller jury is a constitutional requirement. The defendant argues that the 11-member jury was a structural trial error that guarantees him a new trial. But the Second Circuit judges are not in agreement about this. Most of them determined that if there is any outstanding question on this issue, it should be decided by the Supreme Court.

The Supreme Court said in Williams v. Florida, 399 U.S. 78 (1970), that the Sixth Amendment right to a trial by jury does not mandate a 12-person jury. Post-Williams, the Second Circuit held in U.S. v. Stratton, 779 F.3d 820 (2d Cir. 1985), that the denial of a 12-person jury does not "impair the substantial rights of a criminal defendant." The judges who agreed not to re-hear this case say there may be good reason to revisit Williams and Stratton, but it is not for the Second Circuit to do so; that task lies with the Supreme Court. There is much discussion in the several opinions on this en banc "decision" about what the Supreme Court actually intended in Williams and whether certain language in that ruling is dicta, or non-holding language that is secondary to the opinion and therefore not binding on the lower courts. For now, Judge Lohier writes on behalf of the other judges who agreed not to rehear this case, "It appears that the denial of the right to a twelve-person jury does not qualify as a structural error that defies analysis by harmless error standards."

The various decisions here discuss the genesis of the 12-member jury, which dates to the English justice system predating the Revolutionary War. And you just know one of the judges makes reference to the old movie, 12 Angry Men, where a single juror held up the deliberations and convinced the other 11 jurors that he was right and the defendant was not guilty. No one made reference to the time that Edith Bunker did the same thing. 

The Second Circuit rarely hears cases en banc, maybe once every two or three years. The thinking is that a three-judge panel is good enough for anybody. Having participated in an en banc case, I can tell you that being in the courtroom with all the Second Circuit judges sitting at the bench is like watching the Northern Lights or a solar eclipse, or the Mets winning the World Series: a once-in-a-lifetime spectacle. What it means for the defendant here is that his criminal conviction stands. I am sure his lawyer will try to convince the Supreme Court to take up the case.