Manufacturing Juror Consent

Shanks v. Dept. of Trans., No B268459 (D2d6 Mar. 9, 2017)

Juror No. 7 in a wrongful death case got dimed out by Jurors 1 and 2 for refusing to deliberate. The court questioned the tattlers, but not No. 7. It then discharged No. 7 replaced her with an alternate. The newly constituted jury then quickly rendered a $12.6 million verdict after a less than a day of deliberation.

Not good enough.

No. 7 had been the source of some drama before deliberations when Plaintiff accused her of sleeping. (Defendant said it looked more like she just visibly hated Plaintiff’s case.) And then during deliberations, it came to light that No. 1 and No. 2 were miffed with No. 7 because they thought she came into the deliberations having prejudged the case. The court asked these jurors a series of narrow leading questions designed to suss out the situation without revealing any deliberations. Although Defendant asked the court to further inquire of the foreperson, the court didn’t do so, expressing some concern about undertaking a heavy-handed inquiry that could interfere with the deliberations. It then relieved No. 7 and replaced her with an alternate.

In a new trial motion, Defendant put in a declaration from No.7, which said she was not sleeping, that she listened to all the evidence and argument, and that she didn’t prejudge the case—she just simply strongly believed that there should be a defense verdict. She also said that Nos. 1 and 2—who had become chummy and wanted a plaintiff verdict—were just annoyed with her for having opposing views. The trial court denied a new trial; Defendant appealed.

A trial court can discharge a juror when she can’t perform her duties, which includes a failure to deliberate. But there’s a big difference between a non-deliberator and a holdout. Dismiss the latter and you’ve effectively deprived the losing party of a jury trial. So to protect from undue meddling, on appeal, a discharge can be affirmed only if the inadequacy is a “demonstrable reality” revealed in the record.

If there’s some indica of non-deliberation, the court needs to investigate in a non-cursory fashion, albeit in a way that does not reveal the status of ongoing deliberations. The court’s inquiry here wasn’t up to snuff. At minimum, the court needed to inquire of No. 7, if not all twelve jurors on the panel. It certainly should not have stopped its inquiry after questioning Nos. 1 and 2—the two jurors who took issue with No. 7. That slanted the inquiry towards discharge. Given the flawed inquiry, it wasn’t a demnostrable reality from the the record that No. 7 was a non-deliberator, instead of a holdout.

But unlike most of the precedent in this area, this trial was civil, not criminal. Plaintiff didn’t need a unanimous verdict to win, only a 9-3. So there’s a question of prejudice. Although the final verdict was 11-1 on most issues—suggesting that No. 7 wouldn’t have made a difference—it was 9-3 on the question of apportionment of fault. That issue will need to be retried.

Reversed.