Shanks v. Dept. of Transportation, 3/9/17, 2DCA/6
In coming around a sharp blind curve on Highway 33, a motorcyclist failed to slow down. He veered into oncoming traffic and struck another motorcycle, killing its driver. The victim’s family filed a wrongful death action, also naming the State for failing to post a sign reducing speeds around the curve. During plaintiffs’ closing argument, some people reported that Juror 7 appeared to fall asleep, something the judge was unable to confirm because his view was blocked. Later, after only about 90 minutes of deliberations, Juror 2 reported to the Court that Juror 7 immediately sided with the State and refused to deliberate (“expressed a fixed conclusion at the beginning of deliberations”). The judge interviewed Juror 1, who confirmed this. The Court then excused Juror 7 without further investigation and denied the defense counsel’s request that the trial judge also interview the jury foreperson. The jury found for Plaintiffs (over $12MM total) against the other driver (12-0), against the State (11-1) and apportioned 90% of the fault to the State (9-3). The trial court denied the State’s motion for new trial on allocation of fault. Held: Reversed on the issue of apportionment only, and new trial granted on that issue.
The right to a jury is fundamental right. The fact that jurors will have different views and strong disagreements is all part of having a jury and their deliberations. The right to and meaning of a jury would be undermined and tarnished if jurors could easily cause the removal of jurors who didn’t agree with their perspective. Think of the movie 12 Angry Men if the other jurors had kicked Henry Fonda off the jury – A very short movie! (although that would have been okay with me because I was never a Henry Fonda fan.)
The excusal of a juror is governed by statute. Code Civ. Pro. 223. While the standard for excusal is based on whether the trial court had “good cause,” which is reviewed under the abuse of discretion standard, this particular area of trial court decision-making gets special scrutiny: “Although the trial court’s ruling will be upheld if there is substantial evidence to support it, the juror’s inability to perform as a juror must appear in the record as a demonstrable reality.” Therefore, to excuse a juror, there must be a manifest showing of misconduct. Here, the appellate court found that “the record lacks sufficient evidence to show as a demonstrable reality that Juror No. 7 was unable to perform her duty as a juror.”
Discharging a juror for misconduct is therefore fraught with peril. A few things to consider:
- In its motion for new trial, the State presented a declaration from Juror 7 that denied all charges made against her. She said that in the initial vote, 3 jurors had sided with the State, and also said that Jurors 1 and 2 had become friends during the trial and carpooled to court.
- In Cleveland, 25 Cal.4th 466, the Supreme Court upheld the reversal of a criminal conviction where a juror had been excused. The trial court had excused a juror after 10 of 11 of the other jurors said that one of the jurors was not functionally deliberating. The problem : The “discharge of the holdout juror violated the defendant’s constitutional right to a unanimous jury verdict.”
- Here, the trial court could have allowed the deliberations to proceed for more time (90 minutes was not very long), and then revisited the subject, and done more investigation, as needed.