Monday, March 27, 2006
The RICO corruption trial of former Illinois Governor George Ryan and a co-defendant remained on hold as U.S. District Judge Rebecca Pallmeyer dismissed two jurors because they failed to disclose criminal convictions on their juror questionnaire. The judge said she would meet with the jury to determine whether to seat two alternates and have them restart their deliberations from the beginning. The defense attorneys have objected to the judge's decision and likely have requested a mistrial. Under Federal Rule of Criminal Procedure 24(c)(3) (here), "The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew." The trial judge has fairly broad discretion to remove a juror and seat an alternate, so this is a difficult issue to win on appeal if the jury were to return a guilty verdict.
A recent example in which the judge removed a juror well into the deliberations was the corruption prosecution of former Philadelphia City Treasurer Corey Kemp and other defendants in 2005. In that case, the judge removed a juror who was refusing to deliberate, and after seating the alternate, the jury returned a guilty verdict on many of the counts. That situation may present a stronger basis for an appeal rather than removing a juror for misconduct unrelated to the case. In Ryan's case, however, if the removed jurors were the holdouts for an acquittal, then a substantial constitutional claim can be raised if there is a guilty verdict. This is an area in which the broad discretion of the district court, and the lack of information about the jury deliberations and the reasons for the removal, make it difficult to predict what will happen next, or even down the line. An AP story (here) discusses Judge Pallmeyer's decision to remove two jurors. (ph)