On petitions for writ of certiorari to the District of Columbia
Court of Appeals.
The petitions for writs of certiorari are denied.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting
from denial of certiorari.
I
Petitioners, convicted of second-degree burglary while armed,
challenge their convictions on the ground that they were denied due
process and the right to an impartial jury in violation of the
Fifth and Sixth Amendments to the United States Constitution. Their
claims stem from the fact that the deliberations of the jury that
convicted them were disrupted by the intoxication of the
Page 464 U.S.
972 , 973
foreman of the jury. On the second day of deliberations, Friday,
July 23, 1981, the trial judge received a note from members of the
jury stating that they "would like to change the foreperson of the
jury due to the fact that the present foreperson seems somewhat
unable to preside this morning ." Lee v. United States,
454
A.2d 770, 772 (D.C.App.1982). That morning, prior to receiving
the note, the judge's chambers had received a call indicating that
the foreman of the jury would be late. In addition, a marshall
suggested to the judge that there might be some question as to
whether one of the jurors was intoxicated.
The trial judge held a separate voir dire of each member of the
jury. The foreman of the jury denied any intoxication and one juror
stated that there was no indication that the foreman had been
drinking. Nine members of the jury stated that it was their belief
that the foreman had been drinking. Their estimation of her degree
of intoxication varied from observations that she appeared to be "a
little intoxicated" to claims that she was flatly "drunk." 1
At the conclusion of the voir dire the trial court suggested
that the petitioners agree to an arrangement whereby the foreman of
the jury would be dismissed and the case would be submitted to the
remaining 11 jurors. Petitioners rejected that suggestion and
proposed instead that the judge declare a mistrial. The trial judge
acknowledged that the juror in question was "somewhat
Page 464 U.S.
972 , 974
under the influence in a fashion . . . that makes deliberations
. . . inappropriate at this time." Pet. for Cert. of McIlwain 11.
But the judge nonetheless denied the motion for a mistrial.
Instead, he ordered an immediate three-day recess, noting his hope
that the "offending juror [ would be] perfectly sober and able to
deliberate" on Monday when deliberations would resume. Lee v.
United States, supra, at 773. The judge expressly asked the juror
to "come back on Monday refreshed." Ibid. Before the jury resumed
deliberations on Monday, the trial judge "look[ed] in" on the
jurors and informed counsel that he detected no further disability.
Ibid. The jury acquitted the petitioners of armed robbery but
convicted them of second-degree burglary while armed.
The District of Columbia Court of Appeals affirmed the
petitioners' convictions on the ground that they had failed to show
that they were prejudiced by the juror's intoxication. Justifying
this conclusion, the Court of Appeals observed:
"[O]nly one juror was involved, and
only a short period of the deliberations was called into question.
There is no evidence that any drinking actually occurred in the
jury room or during the course of the trial, and the jury
foreperson was not conclusively shown to have been intoxicated at
the time of voir dire. The recess, coupled with the judge's
checking in on the jury on Monday, both of which were done with the
concurrence of appellants' counsel, foreclosed the possibility of
prejudice. Under these circumstances, it cannot reasonably be said
that the appellants were substantially deprived of their right to
the judgment of objective and competent jurors." Id., at 774.
This Court should grant certiorari and review the Court of
Appeals' decision because it raises serious questions regarding the
standard to be applied in determining the conditions under which a
juror's misconduct and incapacity deprives a defendant of his Fifth
Amendment right to due process and his Sixth Amendment right to an
impartial jury.
II
This Court has repeatedly insisted in a wide variety of contexts
that the right to be tried before a jury capable and willing to
decide a case solely on the evidence before it is a cornerstone of
our
Page 464 U.S.
972 , 975
criminal justice system. See, e.g., Irvin v. Dowd,
366 U.S. 717 (1961). This
precious right is denigrated when a conviction resting upon
deliberations tainted by a juror's gross and debilitating
impropriety is allowed to stand.
The issue of juror misconduct usually involves allegations of
juror bias. Here, however, the complaint is not that the juror in
question was biased against the petitioners. Rather, the complaint
is that the juror's drunkenness rendered her incompetent and that a
necessary corollary of the right to an impartial jury is the right
to a jury in which all of the members are mentally competent. This
Court as well as other courts have recognized the right to a
mentally competent jury. See, e.g., Jordan v. Massachusetts,
225 U.S.
167, 176, 652 (1912); Sullivan v. Fogg,
613
F.2d 465 (CA2 1980) (trial before jury with an insane juror
inconsistent with due process).
It is undisputed that one of the members of the jury-the person
chosen to be its foreman-was inebriated during at least part of the
deliberations. [
Footnote 2] The
trial judge specifically found that the juror was " somewhat under
the influence," and recessed the trial so that the offending juror
would be able to deliberate after a three-day respite. The extent
of the juror's incapacitation is highlighted by the trial judge's
suggestion that he simply dismiss her and allow the remaining
jurors to decide the case on their own.
The Court of Appeals finds comfort in the fact that "only" one
juror was intoxicated. Yet "only" one juror may be the difference
between liberty and imprisonment. Due process requires that every
member of a jury meet minimal requirements of mental competence and
impartiality. The Court of Appeals also finds it relevant that
"only a short period of the deliberations was called into
question." But the Court of Appeals cites no facts and gives no
reasons which support the notion that the affected period of
deliberations was insignificant. Given the delicate dynamics of
jury deliberations, it is simply impossible to
Page 464 U.S.
972 , 976
know the effects the intoxicated juror had on her fellow jurors.
Common sense would seem to indicate, however, that the general
effect would not be conducive to the careful and objective
deliberations upon which our criminal justice system relies.
In defending the decision of the Court of Appeals, the
government strongly relies upon this Court's holding in Smith v.
Phillips,
455 U.S.
209 (1982). Smith involved allegations that a defendant had
been denied due process because, during his state court trial, one
of the jurors applied to the prosecutor's office for a job as an
investigator. The prosecutor learned of the application during the
trial but failed to disclose this information until after the jury
had convicted the defendant. The state court conducted a post-trial
evidentiary hearing and determined that the juror was not actually
biased. The federal district court, affirmed by the court of
appeals, granted habeas corpus relief to the defendant on the
ground that the juror's action had deprived the defendant of his
constitutional right to an impartial jury. This Court reversed,
holding that the post-trial evidentiary hearing provided sufficient
protection for the defendant. Establishing a new standard by which
to determine disputes over the integrity of jury deliberations, the
majority of this Court declared that " the remedy for allegations
of juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias." Id., at 215, 102 S. Ct., at
945.
Smith is a flawed ruling for reasons I have previously
articulated. Smith v. Phillips, supra, at 224-244-960 (MARSHALL,
J., dissenting). It misrepresents the factual circumstances of the
incident that was at issue. Id., at 229. It constitutes a departure
from the mainstream of this Court's decisions concerning the
integrity of jury deliberations. Cf. Peters v. Kiff,
407 U.S.
493, 502, 2168 (1971) (plurality) ("[E]ven if there is no
showing of actual bias in the tribunal, this Court has held that
due process is denied by circumstances that create the likelihood
or the appearance of bias."). It posits a standard for challenging
juror misconduct that is unrealistically demanding since proof of
actual bias is virtually impossible to discover. Smith v. Phillips,
supra, 455 U.S., at 230-232-953. In sum, Smith was wrongly decided,
exerts a baleful influence over this Court's consideration of
analogous cases, and should be reconsidered.
Due process requires far more protection against juror
misconduct than the "actual bias" test mandated by Smith. With
respect to the case at bar, due process may well require the
grant-
Page 464 U.S.
972 , 977
ing of a mistrial whenever a trial judge finds that a juror,
already engaged in deliberations, is so drunk that the
deliberations must be recessed. This rule would undoubtedly affect
very few trials; drunkenness on the part of active jurors is
certainly an abberation. As to objections that this per se rule
would create inconvenience and pose a drain on judicial resources,
the only response is that such costs are what we must pay in order
to give more than lip service to our claim that trial by an
impartial and competent jury constitutes a "priceless" right. See
Irvin v. Dowd, supra, 366 U.S., at 721. Because this case presents
important issues implicating the constitutional right to a fair
trial, I would grant the petitions.
Footnotes
Footnote 1 "JUROR CURLEY: I
will tell it like it is. It seems like she is a little intoxicated.
. . .
JUROR FRAZIER: As far as I am concerned, she had been drinking
this morning, Your Honor. . . .
JUROR TYSON: She is not herself. She is just talking a lot . . .
I assume she is under the influence of some kind. . . .
JUROR FORD: I thought she was incompetent to preside because of
the fact that she was a little intoxicated. . . .
JUROR FLYNN: She did look like she was under the influence of
alcohol . . . I do not think she should be a juror on this this
morning . . . .
JUROR JACKSON: She seemed to be under the influence of alcohol,
sir . . . I think she still is a little intoxicated, unreasonable.
. .
JUROR WATSON: Well, it seemed like she had been drinking and she
wouldn't let anyone else talk; just difficult to accomplish
anything. . . .
JUROR HUNTER: To my knowledge I think she had just a little too
much to drink to be in this position that we are in. . .
JUROR WALL: She is drunk. . . ." Pet. for Cert. of McIlwain
9.
Footnote 2 Although the
Court of Appeals asserted that there is no evidence that drinking
occurred during the course of the trial, two jurors indicated that
the offending juror had been drinking during the trial, prior to
the day she was examined by the judge. See Lee v. United States,
supra, at 772-773; Pet. for Cert. of McIlwain 10-11.
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