Appellant McCowen Brief - Mass Cases
Appellant McCowen Brief - Mass Cases Appellant McCowen Brief - Mass Cases
If a deliberating juror "dies, or becomes ill, or is unable to perform his duty for any other good1 cause - the court may order him to be discharged" G.L. c. 234, $268. A hearing must be held to determine whether good cause exists. Haywood, supra. Neither the case nor juxors ' interactions should be discussed. See Commonwealth v. Webster, 391 MaSS. 271, 275-76 (1984). If the "problem" juror is questioned, the judge should explain be cannot be discharged unless he has a personal problem unrelated to the case and fellow jurors. Unless the juror indicates such a problem, all questioning should cease. Haywoad, 377 Mass. at 770, n. 15. None 05 that happened here. After the November 13, 2006 hearing, Huffman returned to deliberations. Tr. 3740-41. No findings exist to establish the "good cause" necessary to remove her the next day. She did nothi.ng more sinister than accept a call from her child's father, in full view of court officers and other jurors. Had a hearing been held, Buffman could inot have been legitimately removed. The Connar problem jaror said he was unable to honor his oath, but did not establish statutorily required "good cause." The Court found such representations, made by the trial court arid other jurors, may have been euphemisms for the truth, that the juror persisted in asserting a minority position. Here, -29-
the trial judge's reasons fox refusing further inquiry are immaterial. A hearing was required. In an appropriate case, after an appropriate hearing, and on the basis of appropriate findings, a judge may conclude a juror has a mental. or emotional aberration, personal to the juror, that rises to the level of good cause for discharge. Here, no one suggested Huf fman suffered from emotional Or psychological illness. Not only were there no findings; there were no allegations. The trial court simply bounced a juror thought to be holding up the verdict. The trial court's reliance on Commonwe,alth v. Tennison, 440 Mass. 553 (2003), Tr. 3806, was also misplaced: In Cornonwealth v. Jackson, 376 Mass. 790, 800 (1978), this court set forth procedures for courts to' follow when a claim of extraneaus influence ... is brought to the attention of a trial judge. The judge should first determine whether the material . raiaes a serious question of possible prejudice. If ._ so .__ he ... should conduct a voir dire examination of the jurors. This initial voir dire may be conducted collectively, but if, in €act, a juror indicates exposure to the extraneous material in question, an individual voir dire is required to determine the extent of that exposure and its prejudicial effect. - Id. at 557-58 citing Commonwealth v. Koumaris, 440 Mass. 405, 412 (2003); CommonweaLth v. Francis, 432 Mass. 353, 369-70 (2000); Jackson, 376 Mass. at 800. Bere, no removal hearing was held. The day before, Huffman passed muster and returned to deliberations. But -30- . ... . .-
- Page 1 and 2: COMMONWEAITH OF MASSACHUSETTS SUPRE
- Page 3 and 4: TABLE OF CASES Commonwealth v. DiGi
- Page 5 and 6: Commonwealth v. Laguer 410 Mass. 89
- Page 7 and 8: Commonwealth v. Freeman 407 Mass. 2
- Page 9 and 10: Turner v . Safley 482 U.S. 78 (1987
- Page 11 and 12: on November 16, 2006 App. 52. That
- Page 13 and 14: inquired about Arnold's leering at
- Page 15 and 16: something and another witness descr
- Page 17 and 18: ejected that argument. App. 20-22.
- Page 19 and 20: Lemire: We ran two. One standard wa
- Page 21 and 22: instant case. Tr. 3427-29. The tria
- Page 23 and 24: counsel's request, the trial court
- Page 25 and 26: people, referring to African-Americ
- Page 27 and 28: factual findings of the unavailable
- Page 29 and 30: time-of-death evidence and competin
- Page 31 and 32: Diaz, the U.S. Supreme Court overru
- Page 33 and 34: 13, 2006, the trial court conferred
- Page 35 and 36: necessary "good cause," was reversi
- Page 37: perfunctory dismissal was error. "A
- Page 41 and 42: judge. Kamara, 422 Mass. at 620; Te
- Page 43 and 44: (whether the defendant or the polic
- Page 45 and 46: interrogators less likely to use co
- Page 47 and 48: a a 0 a 0 1) 0 0 poverty, inebriati
- Page 49 and 50: counsel in opening, questioning, an
- Page 51 and 52: post-verdict dinner with the prosec
- Page 53 and 54: L D D D D B D D I I find ,. [an] af
- Page 55 and 56: she "misled the court," was cast in
- Page 57 and 58: juvenile, probation, arrest and cri
- Page 59 and 60: trial. Despite repeated requests, t
- Page 61 and 62: Worthington when he attacked two to
- Page 63 and 64: e a 0 The trial court's denial of t
- Page 65 and 66: 0 e 0 0 0 Q Q D B other; if with on
- Page 67 and 68: (1983). The trial court‘s media p
- Page 69 and 70: These questions opened the door to
- Page 71 and 72: fX. THESE VERDICTS c. 278, §33E. S
- Page 73 and 74: job was to help jurors understand i
If a deliberating juror "dies, or becomes ill, or<br />
is unable to perform his duty for any other good1 cause -<br />
the court may order him to be discharged" G.L. c. 234,<br />
$268. A hearing must be held to determine whether good<br />
cause exists. Haywood, supra. Neither the case nor<br />
juxors ' interactions should be discussed. See<br />
Commonwealth v. Webster, 391 MaSS. 271, 275-76 (1984).<br />
If the "problem" juror is questioned, the judge should<br />
explain be cannot be discharged unless he has a personal<br />
problem unrelated to the case and fellow jurors. Unless<br />
the juror indicates such a problem, all questioning<br />
should cease. Haywoad, 377 <strong>Mass</strong>. at 770, n. 15. None 05<br />
that happened here. After the November 13, 2006 hearing,<br />
Huffman returned to deliberations. Tr. 3740-41. No<br />
findings exist to establish the "good cause" necessary<br />
to remove her the next day. She did nothi.ng more<br />
sinister than accept a call from her child's father, in<br />
full view of court officers and other jurors.<br />
Had a hearing been held, Buffman could inot have<br />
been legitimately removed. The Connar problem jaror said<br />
he was unable to honor his oath, but did not establish<br />
statutorily required "good cause." The Court found such<br />
representations, made by the trial court arid other<br />
jurors, may have been euphemisms for the truth, that the<br />
juror persisted in asserting a minority position. Here,<br />
-29-
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