ElcomSoft Jury Denied Access to full DMCA Text

ryochiji writes "Wired Online is reporting in this article that the jury in the ElcomSoft trial requested access 'to the full copy of the DMCA to assist in their decision-making' but was declined. 'Instead, [Judge] Whyte said he would answer specific questions jurors had about portions of the law they must consider in determining ElcomSoft's guilt or innocence.' I don't know if this is common practice in the court of law, but it somehow doesn't sound right ..."

Comments

It isn't that uncommon...

[leviramsey]

...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...

Kind of makes you wonder why they don't simplify the law a little, don't it?

Re:It isn't that uncommon...

[dbrutus]

I find it amazing that a jury deciding a case has less access to the text of the law than any convicted felon in the United States of America.

If the judge is elected, he needs to be recalled, if he's appointed he needs to be impeached.

Re:It isn't that uncommon...

[qqtortqq]

Laws have to be written the way they are so they can be enforcable.

Exmaple 1) You can't have sex for money.

Example 2) A person who knowingly or intentionally:
(1) performs, or offers or agrees to perform, sexual intercourse or deviate sexual conduct; or
(2) fondles, or offers or agrees to fondle, the genitals of another person;
for money or other property commits prostitution, a Class A misdemeanor. However, the offense is a Class D felony if the person has two (2) prior convictions under this section.


If you were arrested for the "can't have sex for money" law, and it wasn't spelled out like it is in example #2 (the indiana state prostitution law), any lawyer could get you off the hook. My client didn't have sex, just played with her stuff. My client never actually had sex with the prositiute, the cops broke it up before they could. My client didn't pay the hooker, only gave her a crack rock. My client etc...

If you take the time to read the laws, they really aren't all that confusing.

that is unconstitutional (see FIJA.org)

[TheGratefulNet]

fija (fully informed juray assoc) says that its NOT the judge's job to interpret the law. even though most judges THINK that's the case.

in fact, its the SOLE job of the jury to do that. the judge has NO RIGHT to judge the law. that's what the jury is for! in cases where the law is too harsh or should not be applied, the jury has the constitutional right to OVERRIDE ANY LAW IT WISHES on a case by case basis.

of course any juror who lets on that he KNOWS this will not pass voire dire. catch 22. sigh ;-(

fija.org is well worth the read. its scary to see which states are fija-friendly and which are not (most are not).

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Facts are for the jury and law is for the judge; the judges are right about the rule (one would hope!); a constitutional right to invalidate laws does not exist for the jury. FIJA or whoever may disagree and may want to change and perhaps can, but it's not the law. What they propose is a reform, or that current law is wrong, which is their right but a fringe view. (I'm citing federal practice; individual states do have varying practice, as is their right according to their constitutions to evaluate state laws.)

IAAL FWIW. :)

Re:that is unconstitutional (see FIJA.org)

[TheGratefulNet]

so tell me, then - how is FIJA wrong? I assume you've seen their website?

according to fija, US juries have the right to judge unjust laws. not just FOLLOW the law blindly but actually OVERRIDE laws.

IANAL but it seems clear what fija is saying. are you of the view that fija is all wrong? or my understanding of fija is wrong? (fija is not a 'law' but a website that comments on some aspects of the law, from a jury-rights perspective).

what they say on their website sure sounds right to me (not that that means anything, legally). the checks and balances were put in to protect against unjust laws or cases where a specific instance of a 'crime' is deemed ok, given the circumstances. or, simply just to keep the government in check. the jury is the last stop for The People to have their say. it just makes sense that they'd have the ability to judge laws and not just blindly apply them.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

I don't have time to review their entire website, but they're clearly stating an aspiration, not the current law. So when they talk of the jury having a right, they're not referring to anything in existing law. From their "about" page: "In particular, FIJA seeks to restore the traditional trial by jury, and protect it from further incursions."

So they want to "restore the traditional trial by jury" and to prevent "further incursions." In other words, they're activists and would like to promote legislation -- they even have a guide on how to organize your own local reform effort.

As for whether they're right on the substance, I'll keep my mouth shut. I am after all a member of the conspiracy to deprive juries of their powers. ;-) FIJA is basically right about the checks and balances thing, juries do account for some of the Framers' concerns about the state abusing its powers; however, checks and balances have their limits. Too much power in anyone's hands is bad thing, and a jury is merely a small unaccountable sample of the citiczenry, not their representative. We elect our representatives, but not our juries.

Also, we already grant juries much more power than many countries, including the British from whom we adopted the system; the jury is a very significant element in the judicial system. I should be careful to point out that the jury right belongs to the defendant, not the jury per se. So more jury power against the state really means more protection to the defendant. A defendant can also choose to waive trial by jury.

Last, believe me that the constitutionality of laws in taken very seriously by the judiciary. Although the courts are or course not perfect, they are independent and do not act as rubber stamps for the legislature. Again in the UK, courts generally can't question the propriety of a law at all -- there is no so-called judicial review IIRC.

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

As was previously noted (thanks zeugma-amp), US vs Dougherty, 473 F 2d 1113, 1139 (1972) and US vs Moylan, 417 F 2d 1002, 1006 (1969) both establish that juries have a right to nullify. Are you aware of any superior court which overturned these opinions or any actual case law subsequent to these decisions that overturned them?

If not, then jury nullification is as much the law of the land as any other judicial decision.

FIJA is something like the defense of marriage act. Nobody is claiming that marriage is anything other than between a man and a woman under current law yet the Congress passed such a law.

Re:that is unconstitutional (see FIJA.org)

[unitron]

"I need access to the full original text to give an opinion."

I just checked with the judge. He said you can't have access to the full text :-)

Re:juries don't usually consult the law directly

[Henry V .009]

Goddamn, but that is just dumb. Your first point is completely wrong, and your second point shows that you didn't even understand the topic.

Juries get to read large chunks of the law all of the time. They usually receive an interpretation of the statute from the judge as well. The two are not exclusive. If you ever sit on a criminal jury, you may find yourself making decisions as to which statute best fits the crime--all from the statutes as they are written.

Your second point claiming that "the jury is only allowed to decide the facts of the case within the law as it is written," is true (whatever the libertarians have to say about it) but beside the point. You're way off in left field with it. There is no evidence whatsoever that the jury is trying to decide whether or not the law is just--rather they want the text of it to see whether or not the DMCA applies in this case. That is a common request and rarely turned down.

In a few years after you graduate high school you will be called for jury duty (god help us) and find out what it is really like.

Re:juries don't usually consult the law directly

[MacAndrew]

IAAL, and your explanation snaps me back from my befuddlement at this story. I couldn't figure out what was going on until I remembered "jury instructions". Yes, of course, jury instructions are prepared with the input of both parties, in what is supposed to be plain english, and are subject to appeal. From working on an appellate court, believe be these instructions are gone over with a fine-tooth comb. If the DMCA is improperly representaed, or its content changes because of the result in an intervening case, the verdict (guilty -- innocence doesn't typically get appealed) was be vacated and remanded for retrial.

Translating the law into jury instructions is routine. I'd probably appreciate it if I were a juror! It's not that statutes can't be understood by the layperson, it's that their meaning depends on carefully chosen terms of art (like "willfully" as a specific and perhaps surprising legal meaning that would be spelled out for the jury) and precedent from this or related statutes. Thus a statute usually must be researched and interpreted to apply it, and interpretion is not normally the province of the jury.

In short, if anyone things this is a DMCA conspiracy it's not, and if they thinks it's unfair to the people, it's not. Folks the ACLU would otherwise be apeshit (to use the technical legal term).

I disagree on "Deciding whether the law is okay or not is for another court." -- trial courts declare statutes invalid as easily as any other court. Their decisions are reviewed by the appellate court de novo, which means the trial judge gets no deference, the theory being that any judge can evaluate the law regardless of whether they were present at the trial. Questions of fact may well require deference to the trial judge, who saw the witnesses testify. On the other hand, the trial court is bound by precedent, the rulings of higher courts. Once the upper court decides something, lower courts do not get to second-guess it.

Lastly, there is one way jurors do pass on the valdity or even sense of a law or a particular prosecution, called jury nullification. Nullification is where the jury basically acquits where it should have convicted. This "power" (it is not technically legitimate) has been used for good and ill, and has no lasting impact on the law. But once a valid acquittal is entered, retrial is normally (not always) barred by double jeopardy. (Notice how I have to ut siclaimers all over the place -- the law is complicated, and not just a matrix of arcane rules. Rigid, easy to understand rules often sacrifice justice in the name of clarity. Notice also that I have trouble stopping writing once I begin. :)

Re:juries don't usually consult the law directly

[dh003i]

Yes, it is good that the jurrors get a fine-combed interpretation of the law, reviewed by the defense attorney, prosecutor, and judge. But it is still most certainly necessary that they have access to the primary data -- the text of the law. To use an analogy, I may read a review article on the free radical theory of aging. The author -- an expert in the field -- has clarified things for me and given me a good general overview. But it is still necessary -- if I am to make an informed decision about whether or not (s)he's right, and to (for example) cite the studies that the author reviewed -- for me to go to the original papers (the primary data) and read them myself.

Having the jury "understand" the law through the instructions of the court alone simply introduces an extra unnecessary point of error into the process.

May be to keep the jury on topic

[0x0d0a]

It could be that (I'm not following the case) the Elcommsoft people are making a claim that the DMCA is a bogus piece of legislation or something. While I certainly feel for them, the job of the jury is not to evaluate the worth of the DMCA (I know someone's going to bring up jury nullification here, but that's insanely rare). The judge may be trying to prevent Elcommsoft from moving the emphasis from their guilt under the existing, passed-into-legislation law (which is what is at issue) to whether that law is just or constitutional or something (which is for the Supreme Court to decide, not the jury).

Go figure.

Re:May be to keep the jury on topic

[dbrutus]

You might want to look up the Peter Zenger case. The entire principle of press freedom was established via a case of jury nullification. The jury has a right to decide on both the facts and the law.

I've been called for jury duty in both NY and IL. Interestingly, in NY, they played a tape that went over the Peter Zenger case and its importance (though they did not use the words jury nullification). Then again, in answering the judge's question I answered that yes, I would nullify if I felt it was called for. The judge and both attorney's pulled me aside, grilled me to abandon my position and when I wouldn't, the judge used his option to disqualify me from trial.

In Illinois, there was no mention of jury nullification or the Zenger case, the judge went temporarily off the record and stated to the jury that they were not to judge the law (it was the only time during the proceedings he went off record). I again answered the question that yes, I would nullify but this time was not disqualified (perhaps the judge did not notice, perhaps not, he was asking us in a group of 12 to simultaneously answer). I ended up being jury foreman and we unanimously acquited (though not on nullification grounds the law was fine, the guy just wasn't guilty).

Well, that's my own personal experience. I hope it corrects your impression that the law is not up to the jury to decide. It is and it always has been.

Re:May be to keep the jury on topic

[einTier]

In a nutshell, the jury has the right to say, "Yes, the defendant is guilty of the law in question, however, we feel the law is unjust, and therefore declare it null and void in this case."

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

Burying the jury in 100 pages of legalise can destract them from the task at hand.

Speaking of which, does anybody know where this "100 pages" thing came from? Chapter 12 of Title 17, which is (I think) the relevant body of law, is only 13 pages long. Where did Ms. Glasner get her "100 pages" thing?

Re:On the surface

[zeugma-amp]

From The Juror's Handbook as published by Fully Informed Jury Association

As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

The power of the Jury to judge both the facts of the case at hand and the law itself was widely recognised and indeed lauded by the founders of this nation. I've got some documentation on it, but don't really feel like looking further at the moment. I'm sure others on this thread will.

Re:juries don't usually consult the law directly

[MacAndrew]

Your example is a good one. But a few Q's: Do you have expertise in the field, that you can interpret raw data correctly? Could I do it, too? Could any reasonably intelligent person do it and come to the correct conclusion? (One nice thing about science is that there is absolute truth. Not so law. I have some background in both fields.)

Laws also require expertise to interpret, and law school is tough for a reason. The discussions about statutory interpretation in the courts and in the academy are positively endless, and the correct approach is probably one of the most prominent topics in the law. (Judge Posner of the 7th Circuit has written some of the most accessible articles on this.) Laws often do not speak for themselves, and the result of 12 people on a jury coming each to a different private understanding of the law would be chaotic. I think allowing the jury to second-guess the lawyers and the judge -- who are more likely right -- "simply introduces an extra unnecessary point of error into the process" with no compensatory gain.

Whether the DMCA is valid, incidentally, depends not on whether it is a wise or just or efficient or necessary law. The only question is whether it's valid and constitutional, period. The people who haggle about wisdom and justice and efficiency and necessity are called legislators. As for its interpretation, in the present case it's pretty simple unless I haven't followed the case closely enough.

Regardless of expertise, and perhaps more compelling, there is a basic procedural rationale. Judges have to explain their analysis of the law on the record when denying challenges, and approve jury instructions. These things are on the record and available for review. The private judgments of a juror are not. The record is this huge bound paper thing that anyone can see, and which goes up on appeal.

I've actually been involved (as an advisor, not the decisionmaker!) in this process of judging the validity of a law, and it can be tough. You're welcome to read the decision: United States v. Kenney. It was some of my most challenging work, and the decision was widely followed by courts in other circuits so I guess the logic wasn't too bad. BTW, while Kenney may appear to be a gun control case, it's really not; the topic is the generic power of Congress to enact laws under the Commerce Clause.

If "I" the judge am wrong I will have exposed my reasoning for all to ridicule, and exposed myself to reversal by the Supreme Court (which, believe it or not, happened once -- the judges there ignored my advice, although I concede I was right partly by luck :).

And the average educated person?

[phorm]

...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...

So if a jury can't understand it enough to render a decision... how is the average person supposed to be able to understand it enough to avoid infringing it?

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

All that, mind you, is before the jury asks itself if it wants Russia applying its domestic laws in, say, Michigan.

I was right with you up to this point. This issue is deader than dead. The crime of which these folks are accused was committed on US soil; they were arrested on US soil; they are being tried on US soil. The fact that they're Russian citizens is irrelevant.

If you were to commit a crime in Russia, you would expect to be arrested by Russian police officers, tried in a Russian court, and, if convicted, sentenced to a Russian prison. This situation is no different.

Re:juries don't usually consult the law directly

[MacAndrew]

Nullficiation is not a right. It is a flagrant violation of the juror's oath. Sometimes violating your oath might be the right thing to do, but that's not a right -- just a power you can get away with.

I don't have time to really run this down, but here (U.S. v. Thomas) is a 1997 Second Circuit case with a good discussion of jury nullification. It has cites to Supreme Court decisions you can run down if you like, including to Sparf which jury nullification proponents often cite as having upheld jury nullification, when it did the exact opposite. I can only wonder how that is. I would be very interested in contrary evidence with appropriate citations.

In Thomas a juror was dismissed by the trial court on various grounds. The 2nd Cir. found this to be error on evidentiary grounds and remanded. The relevant section in full (U.S. v. Thomas):

B. Nullification as "Just Cause" for Dismissal

In the instant case, the judge identified a different form of bias as the primary ground for dismissing Juror No. 5--one arising not from an external event or from a relationship between a juror and a party, but rather, from a more general opposition to the application of the criminal narcotics laws to the defendants' conduct. In the court's view, Juror No. 5 believed that the defendants had "a right to deal drugs." Based on what the court described as the juror's "preconceived, fixed, cultural, economic, [or] social . . . reasons that are totally improper and impermissible," the court concluded that Juror No. 5 was unlikely to convict the defendants "no matter what the evidence was." Essentially, the judge found that Juror No. 5 intended to engage in a form of "nullification," a practice whereby a juror votes in purposeful disregard of the evidence, defying the court's instructions on the law.

We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied). We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972) (Leventhal, J.); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea, Crim. Just., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. . . . [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove . . . ." Id. at775-76.

As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[] disapprov[al]." Since the famous opinion in Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal--even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone, 378 F.2d 420, 423 (2d Cir.) (Friendly, J.) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied, 389 U.S. 914 (1967)--serve to "permit[] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States, 447 U.S. 10, 22 (1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. Indeed, although nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33; Farnham, supra, at 4, and the federal courts have long noted the defacto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S. 135, 138 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983), courts have consistently recognized that jurors have no right to nullify. See, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury nullification is just a power, not also a right . . . ."); see also Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:
A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991 (1970).

Moreover, although the early history of our country includes the occasional Zenger trial or acquittals in fugitive slave cases, more recent history presents numerous and notorious examples of jurors nullifying--cases that reveal the destructive potential of a practice Professor Randall Kennedy of the Harvard Law School has rightly termed a "sabotage of justice." Randall Kennedy, The Angry Juror, Wall St. J., Sept. 30, 1994, at A12. Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see David Halberstam, The Fifties 431-41 (1993); Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, at 38-57, 221-25 (1987)--shameful examples of how "nullification" has been used to sanction murder and lynching.

Inasmuch as no juror has a right to engage in nullification--and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court--trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where permitted, by dismissal of an offending juror from the venire or the jury. If it is true that the jury's "prerogative of lenity," Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed--because, inter alia, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached--it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror's motivation for "nullification," including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to "faithfully and impartially discharge and perform all the duties incumbent upon [the judge] . . . under the Constitution and laws of the United States," 28 U.S.C. 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.

Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire "for cause" precisely because they are unwilling or unable to follow the applicable law. Indeed, one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.

So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for "jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties." Surely a juror is "unable or disqualified," for purposes of this rule, who is intent on nullifying the applicable law and thereby violating his oath to "render a true verdict according to the law and the evidence."

Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court's instructions on the law and who thus threatens to "undermine[] the impartial determination of justice based on law," Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b). This conclusion reinforces the court's inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially. The rule we adopt applies with equal force whether the juror's refusal to follow the court's instructions results from a desire to "nullify" the applicable law or, for example, as in the cases described above, see supra p. 17, from a perceived physical threat or from a relationship with one of the parties.

Our position in this respect is in accord with that of the Eleventh Circuit. See United States v. Geffrard, 87 F.3d 448, 450-52 (11th Cir.), cert. denied, 117 S. Ct. 442 (1996). In Geffrard, a juror submitted a letter to the court during the course of deliberations in which she stated that she adhered to the Christian teachings of Emanuel Swedenborg. Under Swedenborg's theology, the juror explained, she could not "`live with a verdict of guilty for any of the accused on any of the charges, as [she] believe[d] deep within [her] heart and soul and mind that [the defendants] were unjustly led into this so called transaction by a more intelligent and powerful figure.'" Id. at 451. The juror was convinced, assertedly as a result of her religious beliefs, that the defendants were the victims of governmental entrapment, notwithstanding the fact that the court had earlier instructed the jury that entrapment was not at issue in the case. Id. The juror in Geffrard thus was prepared purposefully to disregard or ignore--to "nullify"--the law as set forth in the court's instructions to the jury. The district court "saw in the letter an inability of the juror to follow the court's instructions on the law." Id. Accordingly, the court dismissed the juror pursuant to Rule 23(b), and the remaining eleven jurors convicted the defendants. The Court of Appeals upheld the dismissal, reasoning that the juror's letter "[made] it a certainty that this particular juror could not reach a verdict following the judge's instructions as applied to the facts." Id. at 452.

We agree that a juror's purposeful refusal to apply the law as set forth in a jury charge constitutes an appropriate basis for that juror's removal. Nor is this conclusion any less valid, in the instant case, in light of Juror No. 5's race. The rule authorizing dismissal of a juror who disregards the law does not include an exception for jurors who violate their sworn duty on the basis of racial or ethnic interests or affinities. Accordingly, the district court's finding that Juror No. 5 was unlikely to convict the defendants "no matter what the evidence" was a proper basis for the exercise of the court's dismissal authority, provided that the court had a sufficient evidentiary basis for this finding. As we explain below, however, the need to safeguard the secrecy of jury deliberations requires the use of a high evidentiary standard for the dismissal of a deliberating juror for purposeful disobedience of a court's instructions, a standard that the record in the instant case fails to meet.