Academic journal article The Review of Litigation

The Legacy of United States V. Thomas: Second Circuit's Swing and a Miss Puts Defendants' Rights at Risk

Academic journal article The Review of Litigation

The Legacy of United States V. Thomas: Second Circuit's Swing and a Miss Puts Defendants' Rights at Risk

Article excerpt


After the conclusion of summations in United States v. Thomas, a seemingly ordinary narcotics case, the court charged the jury and deliberations began.1 During deliberations, the judge investigated allegations that a juror was purposefully disregarding the court's instructions on the law.2 After interviewing the juror, the judge dismissed him, ruling that the juror's attempt at nullification of the law was "just cause" for dismissal under Rule 23(b)3 of the Federal Rules of Criminal Procedure.4 The reconstituted jury returned guilty verdicts for the defendants.5 Unbeknownst to the parties involved, this case established precedent.

In May 1997, the Second Circuit vacated the defendants' convictions in Thomas, holding that the district court erred in dismissing the juror.6 The case produced two distinct consequences: (1) the Second Circuit held that a "deliberating juror's intent to nullify constitutes 'just cause' for dismissal,"7 and (2) the court adopted the evidentiary standard, first set forth in United States v. Brown,8 to determine whether a deliberating juror has exhibited "just cause" under Rule 23(b).9 This evidentiary standard provides that, when considering a request for a Rule 23(b) dismissal, '"if the record evidence discloses any possibility that' a complaint about a juror's conduct 'stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request.'"10

Jury nullification is

[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.11

By holding that intent to nullify constitutes just cause for juror dismissal, the Second Circuit clarified a previously unsettled area of law. Prior to Thomas, courts had used Rule 23(b) mostly in instances of juror illness or unavailability. However, after the Second Circuit's ruling, judges can use Rule 23(b) to dismiss a juror who intends nullification or is unwilling to deliberate in earnest. 3

By adopting the evidentiary standard in Brown, the Second Circuit set three goals for Thomas: [Y) removal of juror impropriety,14 (2) protection of the defendant's right to a verdict from a unanimous jury,15 and (3) protection of the secrecy of jury deliberations from intrusive preverdict judicial inquiries.16

This Note argues that the holding in Thomas is unworkable as a vehicle for accomplishing these goals. Part II provides a brief history of Rule 23(b) and an account of the facts and holding Thomas. Part III offers three reasons why the holding in Thomas is unworkable as a means of accomplishing the Second Circuit's three goals. First, the Second Circuit's failure to provide instruction regarding Thomas's evidentiary standard has resulted in inconsistent application and, consequently, inconsistency in the strength of the right to a unanimous verdict. Second, the court in Thomas substantially reduced judges' ability to identify a nondeliberating or nullifying juror by restricting judicial inquiry, thereby increasing the likelihood of wrongfully removing a holdout juror. Third, the use of judicial discretion in determining the length and thoroughness of judicial inquiries - enabled by the Second Circuit in Thomas - has resulted in uneven protection of the right to a unanimous verdict. Part IV proposes that the goals of the Second Circuit in Thomas can be achieved by relaxing the restrictions placed on judicial inquiry of deliberating jurors.


In 1983, language was added to Rule 23(b) of the Federal Rules of Criminal Procedure that allows courts to unilaterally remove jurors for good cause after deliberations have begun.17 Prior to this amendment to Rule 23(b), dismissal of a juror and allowance of a verdict from the resulting eleven-person jury could only occur through the consent of both parties. …

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