Juror misconduct: Does it happen often?

More than you think, though holding them in contempt is rare

“Is it particularly surprising that jurors violate the rules and end up being kicked off juries? It happens more often than you know. What is surprising is having them held in contempt.”

— Laurie L. Levenson, Loyola Law School professor

At least two of three jurors dismissed in the four-month manslaughter trial over the deadly 2016 Ghost Ship warehouse fire could be held in contempt of court for alleged misconduct that has put the case in jeopardy of a mistrial, a judge suggested Tuesday.

While juror misconduct has cropped up from time to time, from big murder cases like O.J. Simpson and Scott Peterson to a deadly highway shooting that went to trial in Alameda County last fall, finding jurors in contempt would be highly unusual.

Loyola Law School professor Laurie L. Levenson said she couldn’t recall a case where that happened.

“Is it particularly surprising that jurors violate the rules and end up being kicked off juries? It happens more often than you know,” Levenson said Tuesday. “What is surprising is having them held in contempt.”

The judge in the Ghost Ship trial stunned the courtroom Monday by removing three jurors, and ordering deliberations that have lasted nine days to begin anew with alternates.

On Tuesday, Alameda County Superior Court Judge Trina Thompson indicated the jurors had been removed for misconduct, and suggested at least two of them could be held in contempt of court. Being found in contempt could mean the unidentified jurors could receive fines or jail time, depending on the circumstances and the offense.

The replacement of those jurors with alternates puts the trial in jeopardy. There is only one alternate left, who the judge expects may be needed. Derick Almena and Max Harris are charged with 36 counts of involuntary manslaughter in connection with the inferno during a dance party at the warehouse.

The alleged jury misconduct occurred late Thursday afternoon, but it was still unclear Tuesday what the jurors’ violations were, because the judge and attorneys discussed the specifics behind closed doors. But Thompson indicated two jurors may

have engaged in unauthorized communication, while a third may have known about and not reported it.

The judge referred to one instance when a juror received a text message about a news story reporting that a juror had arrived late one day. That tidbit, however, might have been innocuous and not the main reason for the jury misconduct.

Judges instruct jurors and remind them daily not to discuss the case with anyone outside the jury room, read or watch news accounts or conduct their own research.

William Cole, a private defense attorney unaffiliated with the Ghost Ship case, told news reporters at the Alameda County courthouse Tuesday morning

that it’s highly unusual to have multiple jurors dismissed at once for misconduct at this stage of the proceedings, let alone three of them.

“Having all of them go at the same time,” Cole said, “I’ve never heard of that before.”

Levenson said that while holding a juror in contempt for misconduct is within the judge’s discretion, they typically don’t go that far, as it would add another hearing to their workload.

“This must have really upset the court,” Levenson said.

Cole said that attorneys could agree to an 11-person jury, if it comes down to it. However, both sides would have to agree, which might be difficult.

This isn’t the only recent case of juror misconduct in Alameda County. As recently as November, a judge dismissed a juror

for misconduct in a case of two gang members accused of killing a Vallejo woman on Highway 4 who was in a car with a rival gangster.

The dismissed juror, who worked as a court translator in Contra Costa County, had talked with a lawyer who shared an office with an attorney for one of the accused men about his courtroom style, and repeated the conversation to others.

Calling it “attorney misconduct and juror misconduct,” the judge in that case kicked the woman off the jury, replaced her with an alternate and told the jury to restart deliberations. The three-month trial ended in a mistrial after another juror abruptly died during deliberations and there were no alternates left. But the accused men in February pleaded no contest to charges of killing Shanique Marie.

The judge removed two

jurors in the 2004 capital murder trial in Redwood City of Modesto fertilizer salesman Scott Peterson in the disappearance of his pregnant wife, Laci.

The first juror was replaced for conducting her own research on the case, something the judge afterward reminded the other panelists that they are expressly forbidden from doing.

A day later, the judge removed the jury foreman, who later said he felt pressure to convict and “an enormous amount of hostility” from the other jurors.

The jury ended up convicting Peterson of murdering Laci and their unborn child and sending him to death row, where he remains.

Alternate jurors sit with the other jurors during the trial but do not participate in deliberations unless they are needed as replacements

for one of the first 12 jurors. It isn’t uncommon for a juror or two to be removed for a variety of reasons.

During the second trial of Lyle and Erik Menendez in 1996, the foreman was removed because he became ill and another juror was replaced because of her pregnancy.

The Menendez brothers ultimately were convicted in the 1989 shotgun slayings of their wealthy parents and are serving life in prison without possibility of parole.

But juror removal for misconduct is less common.

Ten jurors were dismissed over the course of the O.J. Simpson trial in 1995. Reasons included a family member’s health, undisclosed relationships or experiences that could pose conflicts of interest or undermine their impartiality. In one case, a juror had kept a journal and was accused of secretly attempting to write a book.

Juror misconduct also has affected cases in other states.

In the 2013 trial of Jodi Arias in the murder of her ex-boyfriend in Arizona, three jurors were dismissed, one of them for misconduct for allegedly expressing opinions about the case around other jurors before deliberations had begun. Arias was convicted and is serving a life sentence.

Judges must tread carefully, however, around altering the jury makeup, Levenson said.

“This is a very tricky situation for the judge,” Levenson said. “If these jurors are seen as supporting the defense, excusing those jurors sets up an issue for appeal.”