“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judge Stuart Kyle Duncan argued in a January 2020 dissent in United States v. Ramos that a lower court should have been allowed to remove a member of a jury whose comments during deliberations allegedly sided with the defense in the case. The majority reversed the lower court, finding that it improperly failed to conduct an investigation into the concerns about the juror.

In a Texas federal district court, a jury began sitting during a trial of Rogelio Ramos Jr., who pleaded not guilty to conspiracy to commit wire fraud. During the third day of trial, a juror was replaced with an alternate juror, dubbed Juror 13, without complaint from the prosecutor. Following several more days of testimony, the court received a note stating that Juror 13 didn’t feel well and wished for the jury to recess for the day. The district judge agreed.

The next day, after jury deliberations began, some jurors sent a note to the judge asking how the jury could make an impartial decision when one among them “can not” do so. The judge gave further jury instructions and met with the jury foreperson, but the “impasse” dragged on and the defense called for a mistrial. However, rather than grant the mistrial or conduct an investigation, including into whether the other jurors were attempting to “bully Juror 13 into submission,” the district judge simply had the foreperson repeat his allegations against Juror 13. The foreperson claimed that Juror 13 had “refused to look at the evidence, asked other jurors to look at evidence outside the trial evidence,” and appeared to be pro-defendant. The judge then removed Juror 13 for alleged bias and a failure to “participate” meaningfully in deliberations. With only 11 jurors, the jury found Ramos guilty. Ramos appealed to the Fifth Circuit.

The appeals court majority reversed the conviction and ruled that the judge had improperly removed Juror 13. The majority explained that established Fifth Circuit case law “requires that there be an investigation” before a judge removes a juror. In this case, the judge did not even interview Juror 13 or any other jurors about the foreperson’s uncorroborated allegations against Juror 13. The majority concluded that the trial judge had “abused its discretion by failing to do any investigation.”

Judge Duncan dissented, arguing that the district court showed “sufficient” and plausible proof to warrant the juror’s dismissal, supported by the foreperson’s testimony as well as alleged contact with the removed juror. Analogizing the situation to the famous play and movie “12 Angry Men,” Duncan claimed that the dismissed juror was more likely to browbeat other jurors  than “relentlessly” focus on evidence.

The majority strongly rejected Duncan’s assertions. They explained that the record was clear that the judge “never had any face-to-face interaction with Juror 13 regarding the foreperson’s allegations,” and that there was absolutely no other “factual support” for the decision. They specifically criticized Duncan for suggesting that “the decision of whether to conduct an investigation into juror misconduct rests with the court’s discretion,” a proposition for which they concluded there was “no authority.” They noted that the reference to  “12 Angry Men” actually “supports” the majority decision, since it illustrates “the importance of each juror to the outcome of the case” and that “one juror can sway the other eleven.” Although “Twelve Angry Men is fictional,” the majority pointed out, “the fact that one juror can influence the others and should not be lightly dismissed from the panel is not.”

Fortunately, Duncan’s attempt to subvert the principle that a juror cannot be removed without cause and a thorough investigation was rejected. The majority clearly understood the lesson of “12 Angry Men” and Mr. Ramos will get a new trial.

Note: the initial draft of this post was prepared by PFAW legal intern Oliver Telsuma.