Child Molestation Conviction Reversed Due to Improper Removal of Holdout Juror

The Georgia Court of Appeals held that the trial court abused its discretion in removing a juror during deliberations in a child molestation case. There was no evidence that the juror’s verdict was being based on something other than his view of the evidence in the case.

Background

The defendant was on trial for the offenses of aggravated child molestation, incest, four counts of child molestation, and two counts of electronically furnishing obscene material to a minor.

During jury selection, a potential juror disclosed that he worked as a forensic analyst. He initially expressed some concern about serving on the jury but ultimately indicated that he could be fair. He said that he could “put [his] occupation to the side” and decide the case solely on the evidence presented at trial. Neither side struck him so he was selected to the jury.

After impaneling the jury, the trial court gave the jurors some preliminary instructions which included not discussing the case on social media. Following those instructions, the juror informed the judge that, prior to being placed on the jury, he posted on Twitter about his potential jury service, stating that considering his forensics background, he was “walking grounds for a mistrial.”

The trial court noted that both parties were aware of his background and that neither had questioned his ability to serve. After the juror’s disclosure of the Twitter post, neither party sought his removal.

Jury Deliberations

After four-plus hours of deliberations, the jury sent a note, written by the foreperson, to the trial judge that it was in agreement as to one count but was deadlocked 11-1 on all of the other counts.

At that time, the judge asked whether all of the members were participating in deliberations and the jury responded that everyone was participating. The judge ordered them to continue deliberating.

A short time later, the jury foreperson sent another note that stated they were still “hopelessly deadlocked.” At that same time, a separate note, written by a different juror, was submitted that read, “We have a juror that cannot put his personal job title aside because he is an analyst. This is why we are hung.”

Court’s Inquiries of the Jurors

It was subsequently realized that the holdout was the forensic analyst and that he was also serving as the foreperson. The trial judge then engaged in an inquiry with him about a post he made to his Twitter account while the trial was ongoing.

The post read, “Extraordinary claims demand extraordinary evidence.” The analyst claimed that the post was in his professional capacity and was related to claims that were being made at an ongoing conference.

The trial court then explained the note it had received from the other jury and confirmed with him that he could render a verdict based on the evidence in the case. He responded, “Yes, Your Honor.”

After receiving another note from the jury that they remained deadlocked, the trial court decided to interview the other juror who had sent the note earlier about the analyst. The juror indicated that the analyst was participating in the deliberations but kept referencing what he had learned at his job as the reason why he can’t change his mind about the case.

Court’s Review of the Holdout Juror’s Twitter Posts

The trial court then requested a complete list of the analyst’s Twitter posts during the trial.

During jury selection, he posted the following:

“I’ve personally been the victim of a violent crime[.] I could go on, but any one of those is enough that they won’t seat you for a criminal case. #1 is disqualifying for most civil cases. I won’t let anyone misrepresent digital evidence, I’m a walking grounds [sic] for a mistrial.”

“I would never say I’d be involved in jury nullification. But I also don’t think prison is appropriate for most nonviolent offenses and would likely vote my conscience.”

“It’s a child molestation case that also involves digital evidence. During the initial panel ‘what do you do’ questions, I said I do digital forensics and have done expert witness testimony. In the ready room now just waiting for that first round of strikes . . . Playing the ‘report for jury duty even though nobody will EVER seat you on a jury’ game this morning.”

Later that day, after the discussion with the judge regarding his “walking mistrial” post, he posted:

“I’m not trying to get out of anything. I just didn’t want to waste the state’s time with a mistrial.”

In a follow-up post the next day, he stated:

“I wanted them to know that if there was an issue with that tweet (or my position), either dismiss me now or seat a new jury. But didn’t want it coming up at the end of or after the trial.”

His final post was the “[e]xtraordinary claims demand extraordinary evidence” statement while the trial was ongoing.

Decision to Remove Juror

The trial court decided to remove the analyst from the jury, citing its concern about the posts regarding “jury nullification” and “extraordinary evidence,” as well as the fact that the juror continued to post on social media after being instructed not to do so several times.

The trial court explained that its decision was “based on the totality of all of the Tweets, in combination with what the Court has been informed.” Ultimately, it concluded that there has been “frustration of jury deliberations in this case.”

After the juror was replaced and removed with an alternate juror, the jury convicted the defendant of all but one of the charges later that same day.

In denying the defendant’s motion for new trial, the trial court ruled that the juror failed to “put his occupation aside” during deliberations, despite stating during jury selection that he would. As a result, the trial court found that the juror was “untruthful” with the court.

Court of Appeals’ Analysis

At the outset, the Court noted that while trial courts generally have broad discretion to replace jurors during the trial, that discretion narrows “once deliberations have begun, and even more so when removing a dissenting juror from a jury that appears to be divided.”

When dealing with a dissenting juror, the trial court must be very mindful that its actions have the potential to violate a defendant’s right to a unanimous verdict. The Court pointed out that to remove a holdout juror, it must be for a reason “unrelated to the juror’s view of the trial evidence.”

The Court noted that there was no contention that the analyst was basing his verdict on anything other than the evidence at trial. Moreover, the Court stated that basing his verdict in part on his work experience was not improper as jurors always bring their prior knowledge and experience with them to jury deliberations.

Citing prior Georgia Supreme Court decisions, the Court reasoned that “the fact that his specialized knowledge informed his interpretation of the evidence is not a proper ground for complaint or removal.”

The Court then turned to the analyst’s Twitter posts before and during the trial. First, the Court noted that several of the posts, including the “jury nullification” post, were prior to the trial court’s instructions not to post on social media.

Regarding the remaining three posts, the Court held that while these posts did violate the trial court’s instructions, the posts did not offer details about the trial. The Court concluded that these posts were “minor infractions” and that it “cannot find such violation sufficient legal cause for removing the single dissenting voice from a deadlocked jury.”

As a result, the Court reversed the defendant’s convictions and remanded his case for a new trial.

Essentially, the reason why the removal of this juror was found to be error was due to the fact that he was removed during deliberations and he was the sole holdout juror. Had this been during the trial, or at any time prior to deliberations, the trial court’s ruling would not have been reversed. Plus, if he was not the sole holdout on the jury, removing him even during deliberations would likely still not have been cause for reversal.