Appellate court strikes down law allowing convictions by fewer than 12 jurors - coloradopolitics.com
The Colorado Court of Appeals has deemed unconstitutional a state law that allows criminal juries of fewer than 12 people to convict a defendant of a felony.
In doing so, a three-judge panel for the state's appellate court decided a Denver judge violated the state constitution by dismissing one person from a jury during deliberations and letting the remaining 11 members find Bobby L. Taylor guilty.
"Because this violated Taylor’s state constitutional right to have his case decided by a jury of twelve, the 'verdict' was a nullity, and the court should have declared a mistrial," wrote Judge John Daniel Dailey in the panel's Oct. 4 opinion.
The case centered around Denver District Court Judge A. Bruce Jones' response during Taylor's 2018 trial to an act of juror nullification — in which one person, identified as Juror H, refused to find Taylor guilty because Juror H disagreed with Colorado's drug laws.
A police officer claimed he saw Taylor drop two small rocks of cocaine on Colfax Avenue, although the defense questioned the officer's credibility. During deliberations, Jones received a note from the jury asking what to do if certain members wished to find Taylor not guilty for reasons other than the evidence heard at trial.
Jones responded by reminding the jurors they had pledged to render a verdict based on evidence and the law. "Even if you disagree with or do not understand the reasons for some of the rules of law, you must follow them," he instructed them.
The next day, Jones received a second note.
"We have an 11-1 guilty vote, and the '1' juror also believes the defendant is guilty but will not vote that way due to his/her disagreement [with] the drug laws of the state of CO," the note read. "Under no circumstances will he/she change his/her vote, thereby knowingly breaking his/her oath. There will never be a unanimous decision."
The defense asked for a mistrial, but the judge denied the request and instead brought the jury into the room. Juror H then identified himself as the lone holdout. After Jones questioned him individually, Juror H conceded he did not foresee himself changing his mind.
Jones opted to dismiss Juror H for "just cause," citing his pre-existing beliefs about the state's drug regulations and Juror H's inability to follow the law. Because there was no alternate juror at that point, deliberations continued with the remaining 11 jurors, who found Taylor guilty of drug possession.
Although the U.S. Constitution does not set the size of a jury, the Colorado constitution sets the number for criminal cases at 12 people. State law includes an exception: if, after a jury begins deliberating, a judge finds just cause to excuse one of them, the 11 people remaining on the jury may render the verdict.
The legislature adopted the provision in 1994, reasoning that allowing 11 jurors to decide a case in extenuating circumstances would eliminate the cost of having to hold a new trial if one juror fell ill or had a family emergency.
On appeal, Taylor argued that unless he had waived his right to a trial by 12 jurors, it ran afoul of the state constitution to allow a verdict from just 11 people. In response, the Colorado Attorney General's Office claimed that Jones was justified in dismissing Juror H.
"All of the jurors, including Juror H, had concluded that the defendant was guilty. But as long as Juror H continued to serve, no further deliberation could occur, and no accurate result could be reached at all, because he refused to apply the law as instructed," wrote Assistant Attorney General Brian M. Lanni.
But the Court of Appeals panel agreed with Taylor.
"The right with which we are concerned is the right to be tried by a twelve-person jury," Dailey wrote. "Such right is not vindicated simply because twelve jurors are selected to serve; such right is effectuated only when twelve jurors complete the trial and deliberate to a conclusion in the case."
The panel reached its conclusion based on a 2005 decision of the Colorado Supreme Court that the state constitution provides the right to 12-member juries in felony cases, but not in misdemeanor or civil trials. Then-Justice Nathan B. Coats warned that the ruling "all but strikes down the general assembly's attempt to avoid mistrials upon the dismissal of a juror for cause during deliberations" — namely by setting up a future court to invalidate the 1994 law change.
Dailey noted that ironically, it was a memo he wrote earlier in his career as an employee of the attorney general's office that laid the foundation for the General Assembly's 1994 legislation. However, he did not believe he needed to recuse himself from deciding Taylor's appeal.
The panel reversed Taylor's convictions and ordered a new trial. The case is People v. Taylor.
source: https://www.coloradopolitics.com/courts/appellate-court-strikes-down-law-allowing-convictions-by-fewer-than-12-jurors/article_abcf469a-3d91-11ec-88ab-5b7e58c7aba1.html
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