Sunday, August 30, 2020

Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

 Axes to grind . . .


on Ninth’s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judges Gould and Christen.

 Facts: Medical Assistant Litwin and his co-D, Dr. Wetselaar were charged with illegally distributing prescription medicine. Id. at *2. At trial Juror 5 was selected, but then explained her employer wouldn’t pay her salary while she served. She was left on anyway. Id. at *2-*4.

  The trial took 35 trial days. Id. at *5.

  Three hours into deliberations, a juror complained that Juror 5 “will not change her mind” and “will not deliberate.” Id. at *5. The district judge opined that Juror 5 “had an axe to grind” and was refusing to deliberate in retaliation for being left on the jury. Id. at *7.

  There followed an exchange where Juror 5 agreed to review the evidence, listen to the other jurors, and come up with a verdict. Id. at *9. Despite those assurances, and over defense objection, Juror 5 was excused. Id. at *9-*10.

  The next morning an alternate came in: a guilty verdict followed that afternoon. Id. at *10.

 Issue(s): “We confront in this case the question whether a district court erred in dismissing a juror, hours into jury deliberations following a lengthy criminal trial. Dismissing a juror based on her views of the strength of the government's case is an intrusion on the jury's role and violates the Sixth Amendment. But though the decision must be made carefully, there are various reasons why a district court may properly, and in its discretion, remove a juror from service once the jury has begun deliberating. Determining whether such a dismissal was a violation of the defendant's constitutional right to a unanimous jury verdict, or instead a permissible response to a juror's recalcitrance, bias, or incapacity, is a sensitive task. Because district courts observe jurors first-hand, they are accorded considerable deference in their handling of these issues.” Id. at *1.

 Held: Under the unique facts before us, however, and notwithstanding the substantial resources expended in this case, we are constrained to conclude that the district court erred in dismissing a juror. The district court's determination that the juror harbored ‘malice toward the judicial process’ is not supported and cannot provide the basis for the juror's dismissal. And while the district court also cited the juror's alleged refusal to deliberate, based on the record in this case we are firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.” Id.

 Of Note: As the appeal proceeded through argument, the Ninth sought supplemental briefing from the parties on the dismissal of Juror 5. Id. at *10. In response, the district court filed a minute order supplementing the record with emails from Juror 5. Id. at *10. The district court also offered the Ninth an (unsolicited) opinion about the “overwhelming weight of the evidence supporting a finding of guilt.” Id. at *10. Finally, the DJ offered to provide declarations from court staff about Juror 5’s demeanor. Id.

  This curious minute order, and the court’s offer of new declarations, earned a cool reception in the Ninth. Id. at *15.

  An odd twist in an odd case.

 How to Use: Is the improper dismissal of a juror during deliberations structural error (leading to automatic reversal), or is it reviewed for harmless error? Oddly enough, this standard-of-review has not yet been resolved. Id. at *19. Judge Bress avoids deciding it here. Even adopting the government’s “harmless error” approach, the Ninth concludes that any error was not harmless. Id. at *20.

  The standard of review used could well determine the outcome in a future “excused juror” appeal – beware of this unresolved S.O.R. issue.

 For Further Reading: Litwin’s co-defendant, Dr. Wetselaar, was a 93-year old WWI veteran -- one of the oldest federal defendants ever sentenced.  See Review Las Vegas Review-Journal article here.  Id. He suffered from prostrate cancer, chronic renal failure, heart valve disorders, and brain atrophy. Id. 

  He was sentenced to ten years custody. Id.

Dr. Wetselaar

  Three years ago the Ninth reversed the district court’s refusal to grant bail pending appeal. See blog here

  Dr. Wetselaar passed away last April: the Ninth ordered the district court to vacate the judgment and dismiss the indictment as to this defendant. 2020 WL 5050383, at *11 & n.3.



Image of “axe to grind” from  Image of Dr. Weselaar from



Steven Kalar, Federal Public Defender N.D. Cal. Website at



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