Episode 12: Can the bailiff’s interactions with a juror, who wants to be excused, lead to a new trial?

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Episode 12 of The SM JUROR Podcast on Juror Misconduct Law: Can the bailiff’s interactions with a juror, who wants to be excused, lead to a new trial?

State v. Whitaker, No. 75924-8-I, 2018 WL 5784812 (Wash. Ct. App. Nov. 5, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Whitaker, No. 75924-8-I, 2018 WL 5784812 (Wash. Ct. App. Nov. 5, 2018).  The issues we’re going to discuss are the interactions between the bailiff and the jury; a juror’s request to be excused due safety concerns and his dismissal, and juror comments which may signal premature deliberations.


Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.”  We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal.

And, today in Episode 12, we’re going to be looking at the case of State v. Whitaker, which is out of Washington. The issues we’re going to discuss are interactions between the bailiff and the jury, a juror’s request to be excused due to safety concerns and his dismissal, and juror comments which may signal premature deliberations.  Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at State v. Whitaker.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 12 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case State v. Whitaker, which is out of Washington.

This case was decided on November 5, 2018, and I’ll be sure to put the full citation of the case in our episode notes.  And, if you can, please leave us a review because we want your feedback and want to provide value to our listeners.  And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.

In this case, Whitaker was convicted of premeditated first degree murder with some aggravating factors, and conspiracy to commit first degree murder.  He was sentenced to life without the possibility of parole with an additional 240 months on the conspiracy charge.  He moved for a mistrial or new trial several times and was denied and then appealed his conviction.

Relative to the juror misconduct issues, at one point during deliberations, Juror 2 wanted to be excused.  And it’s how the trial court proceeded with that request which was the primary focus of the defendant’s motions for mistrial based on juror misconduct and his appeal.

Now for a quick summary, Juror 2 wanted to be excused because he had some safety concerns and felt that the defendant was not getting a fair trial. The bailiff was buzzed and Juror 2 walked out of the jury room, so the bailiff put him in a conference room and quickly notified the trial court, who notified the parties.  Juror 2 expressed what his concerns were in open court.  He stated that he felt threatened by other jurors and began having chest pains feeling that the pressure on him was too great. The bailiff also testified about what occurred with his interactions with the jury and Juror 2.  Then Juror 2 had a heart attack and was dismissed as a juror.  Afterwards, the jury convicted the defendant.  The defendant moved for a mistrial on several grounds, including the fact that Juror 2 was segregated from the rest of the jury and was dismissed as a holdout juror.

Now relative to the juror misconduct issues in this case, we’re going to answer three questions:

  1. What types of conversations & interactions between bailiffs and the jury are permissible?
  2. When a holdout juror is dismissed because he suffered a serious medical emergency, is the defendant entitled to a new trial; and
  3. Do disparaging juror comments before deliberations lead to a new trial?

Let’s talk about communications between the bailiff and the jury.

The bailiff, of course, is not in the jury room when the jury is deliberating, and the bailiff does not participate in deliberations in any way.  What do I mean by this?  Well, if the jury has a question about the evidence or an instruction or something they want to ask the trial court, they write it down and give it to the bailiff and then the bailiff gives it to the trial judge.  The bailiff doesn’t give the jury any advice or put in his or her two cents about how they view the evidence or what a jury instruction means.  But the bailiff is there if the jury needs something and there are rules in place to provide how the bailiff should or should not respond.

Washington Criminal Rule CrR 6.15(f)(1) addresses the procedure of what the jury should do if they have a question specifically about the instructions or evidence and it states that “[t]he jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff.”

And from a statutory perspective relative to the scope of the communication between the bailiff and the jury during deliberations, Washington statute RCW 4.44.300 provides that the bailiff shall not communicate with the jury during deliberations, except to ask if they have reached a verdict.

So we have to look at what communications between the bailiff and jury are allowed, and what types of communications are not allowed.

Now the types of communications between the bailiff and the jury which are okay are innocuous or neutral statements.  A couple of examples would be communications necessary for the proper care of the jury, like lunch orders or other administrative matters like telling them to return to the courtroom at a specific time after a recess.  These examples are categorized as innocuous or neutral because they are not communications which could possibly influence deliberations.  Put another way, statements by the bailiff that do not define or explain an instruction or inform the jury on a point of law are not prejudicial.

Now the opinion also provided examples of improper and prejudicial communications between the bailiff and the jury, such as a bailiff’s inquiry as to how deliberations were proceeding and suggestions for making the process run more smoothly, or “comments about the effects of a failure to agree and the impracticability of reconvening court to consider further instructions,” or statements that “hasten the jury’s verdict.”

The trial court heard from both Juror 2 and the bailiff on the record in open court.  Juror 2 stated that he felt threatened by the other jurors and began having chest pains feeling that the pressure on him was too great and the bailiff testified about what occurred when he responded to the jury buzzer going off, and his interactions with the jury and Juror 2.

The trial court made various findings of fact which were on the record.  I want to pause for just a moment here and stress how important it was for the trial court to make its findings of fact on the record.  Remember, with juror misconduct issues and how the trial court handles them, we’re dealing with the abuse of discretion standard of review, which also applies when a trial court denies a party’s motion for mistrial based on juror misconduct.  The trial court is building the record to show any reviewing court what was before the trial court at that time and why the trial court decided to proceed as it did.

Now, relative to the findings of fact, here’s what we know about Juror 2’s request to be excused from deliberations based on the testimony of the bailiff:

The jury buzzed the bailiff for help and the bailiff responded by asking what they needed. Juror 2 said he needed to be excused and began leaving the jury room, and refused to rejoin the jury, so the bailiff had him go to a separate conference room. As soon as the bailiff ascertained the nature of Juror 2’s complaint, he immediately notified the court who then notified counsel.

The bailiff stated that Juror 2’s complaint was that he felt the other jurors were ganging up on him and he was frustrated and flustered by the process, and concerned that the defendant would not get a fair trial.

Now, based on the bailiff’s testimony, the trial court also made the following findings of fact relative to the bailiff’s interactions with the juror:

There was no evidence that the bailiff asked the jury or Juror 2 any questions about why Juror 2 needed to leave deliberations.  He directed Juror 2 not to tell him anything about deliberations even though Juror 2 kept trying to tell him what occurred.  Also, the trial court found that the bailiff did not give any information about the case to Juror 2 or advise him.  And, the Court of Appeals held that these findings were substantiated by the record.

Now, from a procedural standpoint, the defendant moved for a new trial based on Criminal Rule 6.15(f)(1), but that was denied because that rule concerns jury questions about instructions or evidence and that was not the issue relative to Juror 2’s request to be excused.

As such, the Court of Appeals held that the trial court did not abuse its discretion in denying the motion for new trial.  Also, the bailiff’s instructions to the juror not to tell him about the deliberations was proper and the fact that he would notify the court of Juror 2’s request falls under the purview of communications that are necessary for the proper care of the jury – these communications were neutral and innocuous.

Additionally, Juror 2’s safety concerns were discussed in open court, in the presence of the defendant so the defendant’s argument that he was denied an open and public trial with his right to be present was not persuasive.

Now I also want to point out that the defendant cited no authority under which the bailiff was constitutionally required to take a different action when juror 2 requested to be excused and attempted to tell the bailiff what was occurring in deliberations.  Essentially the defendant is arguing that he didn’t like the way the bailiff handled Juror 2’s request, but he doesn’t provide any law which states that the bailiff should have taken a different course of action.  Additionally, he argued that Juror 2 should have put his request in writing, but there was no law or instruction requiring him to do so.

Now, ultimately Juror 2 was discharged or dismissed from the case and that’s because he had a sudden serious medical emergency – he suffered a heart attack.  The significance of his discharge is that Juror 2 was concerned that the defendant would not get a fair trial.  Apparently he was the holdout juror.  The defendant’s argument follows that because Juror 2 was discharged, the jury found the defendant guilty of the crimes and this was unfair and denied him the right to a fair and impartial trial because the holdout juror who supported him was dismissed from the case.

So let’s look at the law relative to the discharge of a holdout juror:

The trial court’s discharge of a juror, including a holdout juror, or a discharge of a juror for any reason, will be reviewed for an abuse of discretion.

The opinion states that a discharge stemming from a juror’s doubts about the sufficiency of the evidence violates the right to a unanimous jury verdict because it enables the State to obtain a conviction even though a member of the jury who began deliberations thought that the State failed to prove its case. “The dismissal of a holdout juror also risks violating the Sixth Amendment right to an impartial jury.”

Now the defendant had moved for a mistrial because Juror 2 was segregated from the rest of the jury, when he left the jury room, and that segregation violated his right to a unanimous verdict.  That motion was denied because the trial court indicated that Juror 2 was discharged because of his severe medical condition in suffering a heart attack and not because of his views on the evidence.

Now central to the defendant’s argument was that Juror 2 suffered the heart attack because of his views on the merits of the case and the threatening pressure he felt from the other members of the jury.  But, the Court of Appeals said that there’s no medical evidence in the record explaining the cause of juror 2’s heart attack.

Now I want to step back here and just say hold on a second. We know, of course, that the cause of a medical condition has to be determined by a medical expert, as medical experts would give expert medical opinions based on a reasonable degree of medical certainty about any causal connection between what occurred in the jury room and the threats Juror 2 felt and his subsequent heart attack.  But how in the world is the defendant supposed to prove that?  He would need a medical expert to examine Juror 2 and he would need to review Juror 2’s declarations in open court and then determine what the threats in the jury room were, and causally connect, if possible, those alleged threats to the heart attack.  However, what occurred in jury deliberations is not accessible because there’s no allegations of extraneous information or evidence that would allow the jurors to testify about what occurred during deliberations.  What does this mean?  It means that Juror 2 cannot testify about what any threats were and neither can any other juror, so a big link in the causal connection would be missing.

So that doesn’t seem fair, does it?  But remember, we’re dealing with the abuse of discretion standard of review here.  Regardless of whether or not there is medical evidence explaining the cause of Juror 2’s heart attack, what’s important here is that the trial court dismissed Juror 2 because he suffered a heart attack, not because of his views on the evidence and it certainly was not an abuse of discretion to dismiss a juror who had a heart attack because he would not be able to return to the jury room to deliberate.  Now I want to repeat that again – Regardless of whether or not there is medical evidence explaining the cause of Juror 2’s heart attack is irrelevant.  The cause doesn’t matter.  Juror 2 was dismissed because he had a heart attack and that finding is supported by the record.

Finally, the defendant argued that he was entitled to a new trial because one of the jurors allegedly already decided that he was guilty before deliberations and told the other jurors – “I hope they fry the f-ing bastard.”

As a general rule, allegations that a jury has deliberated prematurely, without more, do not warrant a new trial.

Now relative to this juror misconduct claim in moving for a new trial based on premature deliberations, the trial court held an evidentiary hearing and questioned the jurors. Now here, what the trial court is trying to determine is whether the alleged statement, “I hope they fry the f-ing bastard”, prejudiced the defendant.  First as to when the statement was made, the trial court found that it was made after the testimony of the medical examiner, but before deliberations began.  Then the trial court wanted to know if any of the jurors heard the statement.

Seven of the fourteen jurors testified that they did hear the statement, three stated that they heard a disparaging remark, and four testified that they heard the same or a substantially similar comment. As such, the trial court denied Whitaker’s motion, finding that there was no evidence that this statement prejudiced him.

Remember again, the burden of proof is on the defendant to show that that remark prejudiced him.  Half the jury didn’t even hear the remark, but for the jurors who did, the defendant needed to question them to develop any possible record of prejudice, such as how that remark influenced a juror to change his or her vote from not guilty to guilty.  There’s no evidence to that effect.

There’s no abuse of discretion in denying the motion for new trial.  There’s no allegation or evidence that the jurors relied on any outside evidence and evidence of when the jury decided the defendant’s guilt inheres in the verdict.  There was no violation of the defendant’s right to an impartial jury. The juror’s motive, intent or belief after hearing the testimony of the medical examiner and making the statement to fry the f-ing bastard inheres in the verdict and cannot be considered.

So there are a few points I want to make relative to strategies and procedures when encountering similar situations as those described here:

First, in situations where a juror wants to leave deliberations and no note is written to the trial court, determine how the trial court was advised of the matter.  Usually this involves some interaction with the bailiff, like in this case.  Now, get the timeline of events in the record as to what happened so that you can demonstrate whether or not the bailiff’s interactions and communications with the juror or jury were appropriate.

Depending on what transpires, ask that the juror and the bailiff answer questions on the record.  Remember, in juror misconduct cases, the standard of review is an abuse of discretion, so the record must demonstrate what the juror misconduct issue is and how the trial court handled the matter and then whether its rulings were an abuse of discretion.

Next, if the juror is dismissed and there is more than one issue going on as to the juror – like here, he was a holdout juror and a juror who suffered a heart attack, understand and make sure the record reflects why the juror was dismissed.  Here, he was dismissed because he had a heart attack.  Whether he was a holdout juror or what caused the heart attack were not at issue.  The juror was dismissed because he had the heart attack and the dismissal for that reason would not be an abuse of discretion.

When dealing with juror comments which might seem prejudicial, make sure you offer proof of what that prejudice is instead of an allegation that your client did not receive a fair and impartial trial.  First, get the comment in the record – Here, it was the juror’s comment that said, “I hope they fry the f-ing bastard.”  Identify which juror made the comment.  Next have each juror questioned on whether they heard the comment and of those who did, determine whether the comment had any impact on their decision in arriving at the verdict that they did.  Also, remember that in trying to prove prejudice, you can’t invade the deliberations and ask jurors what occurred unless there is some issue of the juror or jury being exposed to extraneous evidence.

Now, if you’re on the other side, trying to prove that there is no juror misconduct, ask each juror whether they can still remain fair and impartial, even though they heard that comment.  Once they state that they can, you are eliminating the argument that the defendant was prejudiced by such a comment.

And that’s it for our analysis of the juror misconduct issues in this case.  If you like what you hear and want more, please subscribe to our podcast and leave us a review.

And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.

That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict.  See you next time.


Remember to use the coupon code “podcast25”, exclusively for our podcast listeners, for $25 off our CLE entitled, “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events” which has been accredited & approved for 1.5 general CLE credit hours in 30 states. Click here to register for our CLE.

Because the ONLY evidence you want the jury to consider … is in the courtroom.


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