holding under rule similar to l:8-2(d) that “good cause” for discharge of juror includes only reasons personal to deliberating juror, having nothing to do with case issues or with juror’s relationship with fellow jurors
How later courts described this case
- holding under rule similar to l:8-2(d) that “good cause” for discharge of juror includes only reasons personal to deliberating juror, having nothing to do with case issues or with juror’s relationship with fellow jurors
- noting that the discharge of a deliberating juror is a sensitive undertaking but is permissible when the trial court ensures that good cause exists
- allowing "discharge only for personal reasons ensures that such action will not 'affect the substance or the course of the deliberations' "
- “Great care must be taken to ensure that a lone dissenting juror is not permitted to evade his responsibilities.”
Written by the judges who cited it.
The opinion
Nolan, J.
(dissenting). I dissent.
The court has found reversible error in the trial judge’s limitation of cross-examination of Diane Wazen and the discharge of a deliberating juror.
I agree that the judge should have permitted a wider search for Wazen’s possible bias, but the court has gone down a perilous path in concluding that it was reversible error. The court has to strain to reach this conclusion in light of the impeachment of Wazen by criminal records and the exposition of her possible bias by showing the benefits which she received under the Federal witness protection program. These factors *856 were significantly absent from the cases cited as authority by the court for its holding today. They make a substantial difference.
The court also reverses because the judge discharged a deliberating juror. More particularly, the court holds that no good cause has been shown under G. L. c. 234, § 26B, for discharging the problem juror. I find this impossible to accept.
The judge first learned of a problem on the eleventh day of trial when the foreman sent him a letter relating complaints about the problem juror’s eccentricities. The judge told counsel about the letter and spoke to the juror. He admonished the juror. The judge continued to receive reports critical of the problem juror, who refused to speak to the other jurors and threatened to refuse to deliberate. The problem juror’s father was so apprehensive about his son’s capacity to function as a juror that he asked an attorney to convey this to the judge. A woman, purporting to be the mother, called the judge to complain about the juror’s service. It would have been better practice for the judge to make counsel privy to these contacts, but no harm accrued from the nondisclosure.
Again, as the trial approached the end, the judge was told that the juror indicated that he would not deliberate. In the lobby, he confronted the juror, who told him that he preferred not to deliberate because of a personality clash with the other jurors. The judge told counsel of his encounter. Defense counsel asked that the juror not be excused. The prosecution argued for his discharge. The judge indulged defense counsel and did not discharge the juror.
After the jurors had deliberated about eleven hours, the foreman sent a note to the judge advising him that a “particular juror says he cannot keep the oath.” After the problem juror was brought to the lobby, in the presence of counsel, the judge read the oath and asked him whether he would keep it. The juror said he could not. He was discharged.
The court today says that there should have been a hearing before discharging the juror. For what purpose? The judge and counsel knew full well the weaknesses of the problem juror. He had been questioned by the judge on earlier occasions. The *857 defendant was made fully aware of the emotional difficulties of the juror. There is nothing to indicate that the judge discharged the juror to avoid a deadlocked jury. Nor is there any indication that the juror was unduly influenced by any impropriety in the prosecutor’s closing argument.
In a word, the problem juror understood his obligation but he was not competent to fulfil it. The judge went to great lengths to preserve the integrity of the panel. The notion that this juror alone would have prevented convictions is the wildest speculation.
As to the other alleged errors on which the court does not rely in ordering a new trial, I see nothing which is so prejudicial as to require a new trial.