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Can a judge remove a juror just because the juror is the lone holdout?

In a criminal case, a defendant is entitled to a unanimous verdict by all the jurors selected to hear his case.  Many times if only one juror votes in a defendant’s favor it’s a win for the defense.  The prosecutor  may choose not to go to trial again and dismiss the case or will plea bargain the case in a way that benefits the defendant.  Many times when a jury is hung with the count overwhelmingly in favor of one side or the other (usually against the defendant) the judge and the DA will try to identify the holdout juror, isolate that juror, and remove the juror in order to get a resolution of the case.

That’s what happened recently in the case of People v Armstrong, a 2016 from the 4th District Court of Appeal.  The defendant was facing the death penalty and was in the penalty phase of the trial.  In other words, he was guilty, but now the jury had to decide whether to vote for death or life in prison without parole.  One juror was refusing to vote for death and became the “hold out” blocking a verdict.  The judge removed the juror from the case in light of the frustration expressed by the other jurors.  However, there wasn’t any showing that the juror wasn’t participating in deliberations.  In fact, the juror was deliberating but just disagreed with the other jurors’ conclusions. Removing the juror was found to be error and caused the court to reverse the death sentence.

The role of the defense lawyer when a jury appears to reach an impasse is critical.  A mistrial declared because a jury can’t reach a unanimous verdict is almost always a victory for the defendant.  Any time the prosecution can’t get a conviction in trial the defendant wins.  The defense attorney has to object at the right time and must seek a mistrial and a “do over” whenever possible.  If the defense lawyer is “asleep at the wheel” and doesn’t raise the objection at all or doesn’t raise the right one the defendant suffers.  Getting the right lawyer who stays on top of the case can make all the difference.  It can even determine life and death.  Whether it’s a death penalty case, like Mr. Armstrong’s, or one with a much lesser penalty every case needs the trial lawyer to stay strong, alert, and make the right moves.

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