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Parties have the right to know about juror communications with the judge and staff

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Jury service brings significant discomfort to jurors, being confined to a jury box and then a jury room (often lifeless and inhospitable jury rooms), often prohibited access to cellphones, often suffering from droning testimony and droning argument, and legalese instructions from the bench. Their questions to the judge must be by a note — often with the jury foreperson or other jurors trying to get in the way of doing so or in the way of the note’s contents — passed to the bailiff and then to the judge’s staff and then to the judge, with a delay for the lawyers to be rounded up in the hallway or on their cellphones, with a hearing held on the note, and with a judge sending a responsive note back to the jury.

What happens when a juror’s grandmother is expected not to survive surgery, and is without permission to have a cellphone in the courthouse to know if and when his grandmother passes? How much focus can the juror pay to the proceedings at hand? How do the parties do anything but try to get the person off the jury pool in the first place?

Thomas Harris was tried and convicted by jury on a second degree murder charge. Somehow, even after the potential juror advised during jury selection that he needed to be able to go to his grandmother’s funeral if she did not survive jury, he made it to onto the jury.

After closing argument, the juror’s grandmother died. Here is what happened next: 

Two days later, after being instructed as to the evidence and the applicable law and hearing closing arguments, the jury was dismissed for lunch. During the luncheon recess, the judge’s secretary received a call from the juror’s father, informing her that the juror’s grandmother had passed away. Without notifying counsel of that communication, and, therefore, outside their presence, the secretary spoke to the juror and, after informing the juror of his grandmother’s death, inquired whether he was alright to continue. The juror answered that he was, assuming that he would soon be finished with deliberations. As indicated, neither the defense nor the State was informed of this communication. Soon thereafter, before deliberations began, the alternate jurors were dismissed. Shortly after the jury had begun its deliberations, the juror sent a note to the court, asking that he be excused. That note prompted the following colloquy between the court and defense counsel:


Maryland v. Harris, ____ Md. _____ (Sept. 27, 2012) (emphasis added).


A possible rush to judgment and conviction followed:


The juror was not discharged. Having denied the respondent’s motion for mistrial,  the judge responded to the juror’s note by stating, simply, I cannot excuse you. A few hours later, the jury sent another note, stating that it had reached an unanimous verdict on the specific intent count, but was deadlocked on the depraved heart count. The court instructed the jury to continue deliberating. Later that day, the jury returned a verdict: it acquitted the respondent of second-degree specific intent murder, but convicted him of second-degree depraved heart murder. The respondent moved for a new trial, based, in part, on the undisclosed communication between the juror and the judge’s secretary. That motion was denied and the respondent was sentenced to a term of 15 years in prison.

Harris, ____ Md. _____ (Sept. 27, 2012) (emphasis added).

Praised be both of Maryland‘s appellate courts for reversing Mr. Harris’s conviction for the opposing attorneys being kept in the dark about the communications between the judge’s secretary and the juror whose grandmother died. Had the communication been immediately disclosed, at the very least the alternate jurors might not have been excused yet.

Harris shows that the trial judge knew about, but did not disclose, his secretary’s communication with the juror before the juror asked to be excused due to his grandmother’s passing. The judge stayed silent on the matter until the juror’s excuse request came.