Monday, February 26, 2007

Juror Dismissed from Libby Trial

U.S. District Judge Reggie Walton dismissed a juror from the I. Lewis Libby case because she was exposed to information about the prosecution during the weekend break.  Jurors are routinely instructed not to look at any media reports about a case or discuss it with anyone, an admonition particularly important during the deliberations.  According to an AP story (here), Judge Walton decided not to call on one of the two remaining alternate jurors to join the deliberations because that would require the jury to restart the consideration of the case from the beginning.  Instead, the court relied on its discretionary authority under Federal Rule of Criminal Procedure 23(b), which provides that "a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins."   The D.C. Circuit recognizes that judges have significant discretion in deciding what is "good cause" for the dismissal and the decision to proceed with eleven jurors (see United States v. Harrington, 108 F.3d 1460 (D.C. 1997) ("Rule 23(b) explicitly and without reservation assigns the stop/go decision to the discretion of the trial court, and nothing in the accompanying Advisory Committee notes, or in any case of which we are aware, cabins this discretion in a way that would call this judge's decision into question.").  The judge's decision may indicate that the jurors are close to a verdict, but that is not necessarily the case for the decision to go with an eleven-person jury, and only time will tell how far the jurors had gotten.  While Libby could object to the use of an eleven-person jury, it is very difficult to win an appeal on this issue if he is convicted. (ph)

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