half weeks of a very hard fought and actually embittering bitterly fought trial at the end of the varick the jury came in and they were visibly upset after some consideration i asked the jury be polled the jury was in fact polled and juror number eight refused to coincide with the other jurors she actually said that's not her verdict that's not my verdict is read she was visibly upset there was another juror that was visibly upset but she specifically said that's not my verdict as read the court and then continue to read the nine that ever happened to you before those are never seen before never heard of before and i've been practicing law for about twenty five years and i talk to all the old gray hairs in the courthouse and no one had ever heard of it before so it was a very unusual set of circumstances juror nine ten eleven twelve all conclude concurred with the verdict and we now have revealed to everyone who was interested that it is eleven one split on the juror judge then sent the jury back to deliberate which is as far as it goes now that represents the first of three problems and as i learned in the navy we call them cascading problems the first problem creates a second bigger problem which in turn created the third big problem are you saying that the first problem was that the judge sent them back to deliberate deliberate at that point i believe the proper course of conduct would have been declared a mistrial but having sent them back to deliberate we have revealed to the public that the jury is in fact split so what case then is that i mean this is a very unusual circumstance normally the prohibition against revealing the jury split is the for a verdict has been rendered but do you have a case that fair if the split is revealed in the process of pulling the jury about the verdict it's impermissible to send the jury back to continue deliberating no i do not know if there is a half the difficulty i'm happy with the argument that  together as a coherent whole not surprisingly a short period of time later the holdout juror is reported by the court services officer to be emotionally distraught and asking to be relieved of our obligations as a juror then the second and significantly catastrophic failure dismisses the jury the jury or without consulting with counsel for the government or counsel for the defense when i was appraised of these facts i did my best to control my emotion i inquiring as to whether the trial the jury was physically ill because there is case law out there that says a judge can talk to a juror in emergencies fire burning asteroid heading towards a courthouse the judge can talk to a juror to get for an emergency set of circumstances a crying juror is not an emergency i practiced law i'm in court every single day people cry in court houses that's part of our job there is no murders here there was no legal moral justification for x partying this juror without trial counsel and i mr smith from the government being present nonetheless the court took it upon itself to discharge that juror so now i can go to the second level there and the court ridgeley the first level of error i agree with you have a some concern the second one is actually directly personal ex parte to communication is inappropriate absent an emergency my colleague argues in his brief he says well it's our fault we have to establish prejudice we do not have to step which bridges we have to only establish put no prejudice and only potential prejudice for that to be plain error and reversible on a second right then we come to the third and catastrophic mistake and the one that is the most offensive is dismissing the holdout juror this is on point and it's on almost all fours with the simon thing case the simon think case was a this court or the ruling was any reasonable possibility that this missile is due to the merits of the jurors potential on the merits then it is automatic reversal and at that point the trial court has only two options either to remand it or declare a mistrial or send it back for additional deliberations counsel was there some evidence in the record that at the time the court dismissed the juror that he was unaware that she was the holdout juror i thought i saw something in the record to that effect yes that but that's part of the record isn't it that he did he was not aware at that particular juncture that she was the holdout juror he asserts that i agree having said that had the law been followed and had mr smith from the government and i been consulted we would have pointed it out i'm sure but i just think i just think the record needs to be clear on because she said that if the record shows that she was excused because of the merits of the case and there is evidence that that the judge did not know that she was the holdout juror which would mr somewhat way against that argument we both were standing there present requesting a canvas of the jury and it was disk declined i understand your point i'm just saying that the complete record should be on the table complete records or i've got nothing to hide you've got the entire transcript there something i'm just saying the district court's a little bit confused about which sure was involved at certain points because he referred to the jury by the wrong number i would not go so far as to presume what was what the judge was laboring under a misapprehension confirm or deny whether or not it's the verdict of all the jurors yes so you run the risk that the jurors are going to be outed because you're asking specifically is this your verdict which should have happened at that moment edge when juror eight said entire jury and so the district court in my view has to complete that if you if the if the parties have asked for that the district court has the obligation to complete that poll is there a case that says that the district court has an mine yes it is but it did and i does what i described this is a cascading mistake the first mistake led to the second mistake which led to the third mistake right but we're talking about planar review and i can understand in the in a moment why you didn't object because it was so startling that they would continue the paul but plainer review we don't have any case law that says that you shouldn't complete the poll that's that's you know that's a by itself that's a that's a tough argument i think having said that you know if relief or are going to say i'll concede for that purpose but then we come to the second air you know i've got a juror who has been identified as the lone holdout and who is clearly at odds with the majority view is now complaining that she wishes to believe her obligations as juror sufficient that the court came into the jury room or had a remove from the jury room without checking with counsel without checking with counsel for the government without checking with counsel for defense and then had a conversation with her and he had a conversation with or without the courts or is his office or their there was no independent witness or recreation of what that conversation was and when mr smith with my concurrence asked for that canvas he said it would serve no purpose now the law on this point front comes down to the simon think case which has any reasonable possibility that the dismissal is with the merits of the case merits is plainer and i ask you why in responding to judge rawlinson is question you seem to concede that trial judge was confused as to whether th juror he had just dismissed was the lone holdout when candidly when mr smith and i and we were both fairly animated at that moment when we called the judge out and inquired about it he actually asked act i was there right ok you know i'm looking at this page of the transcript i'm just wondering if this is where you're saying he got confused because you asked the judge was that the juror who was at the juror who dissented from the rest was yes that was it was just my words i don't know that dissent and then he goes on and then you ask again well ok but there was this juror who did what we did the polling said it wasn't her verdict and the judge i mean this is oh yes yes yes she's the one she's won so why was i don't i mean was there he was confused it took him a while to put the two and two together it might have but it's irrelevant the issue here and you know i mean we're just hasn't stayed on the record we're not ok going erica that's the part of the transcript we're talking about there's some other part where he got confused that's  go ahead yeah well i have the question in this case i mean if the problem is it's a holdout juror i mean that's everything else i think can be squared with case law or a harmless error planner but get home and watch a baseball game probably they wanted rid of this person and here it was just the way that it went down there was no there's no complaints from other jurors there's nothing like that and one fact in the record that i wanted to point out the juror asked to be excused right at the end of deliberations on the first day before the jury pool hall before any of this happened this is the juror saying i want out of this and you know there's no doubt that she descended from the jury polled but there but why do you even read the truth the part i just quoted why do you read that as the judge i read him as being confused when your colleague here said was that the one who dissented and maybe it just didn't register because the judge said well there was this jur who asked before deliberations began to be excuse and then your colleague followed up and said no no there was one who didn't the polling said that's not my oh yeah of course that was the one that's how i read the transcript it was no confusion as soon as he was focused on is the juror you just dismissed the one who said this is not my verdict oh yes yes yes she's the one you know once again i wasn't there my mind from what i read in the record i guess i just had a different take from it it seemed to me that he hit the judge had put together in his mind that this juror wanted to go home the night before and then there was the jury poll and she descended but he didn't put it together in his mind that that that was the same person and tell counsel pointed it out to him and then and then he did put it together but once again the court has the record i i wasn't there i guess we just disagree but that was my ok but  judge let's just give the government the benefit of doubt let's say the judge hadn't put two and two together until the juror had already gone home has that changed the analysis under simonton as the standard is still a pretty lenient one it leaning in the in favor of the defendant right it is quite lenient and it's to be to be frank i don't think that even if the judge weren't confused i don't think we need that for the verdict to stand up because what we have is the judge specifically finding  you know later during the during the back and forth with counsel we have the judge specifically saying i did not dismiss this juror on the count of her views and well no but that's not i  guess i don't see that as the standard here the standard is there any reasonable possibility that the condition that this juror was in basically unable to continue deliberations attributable to her views on the merits and it seems to me the inference the very strong inference from this record is that absolutely she went back in there she gave us a little piece of what started happening and the judge rightly cut her off but even from that little snippet we know that she went back in there and those other eleven jurors pounced on her presumably or at least they started getting back and forth into whatever disagreement led them to divide eleven to one and then she broke down so the judge is aware of all of that i don't know how you can't say that there's a reasonable possibility that the reason times and i think it boils down to how broadly the court interprets that term impetus was the fact that she was disagreeing that upset her so much and the fact that she was upset got her kicked off the jury that seems to be what your honor at the same time you are as i'm saying we don't know none of us sitting here knows you don't know your opponent doesn't know but if you're out if were asked and i think this is what i mean tells us if we're supposed to ask is there a reasonable possibility that that's the case i say there's probably more than that it's probably that's the most likely explanation but is there a reasonable possibility that she wasn't able to continue because of her views on the merits and the friction that caused in the jury room i think i don't know what other explanation is there while you're on a night my argument is that simonton shouldn't be read that broadly my argument is that the the point of simonton is you can't kick somebody off of the jury because they because they won't go along you can't kick somebody off of the jury because of their views but if she you know if it had been one of the other jurors that had had a nervous breakdown or whatever but clearly th wouldn't be having the problem that we're having right and you know one one of you one way to read timing today is if your views lead to the breakdown and lead to you getting kicked off the jury then that's your intitled to reverse that verdict can't stand up but what i'm saying is i think it's possible the retiming to say you can't like the point the the whole point of the all of this is you don't get to kick somebody off of a jury because of their views that's what the that's what simonton is trying to prevent there's a there's a bunch and we're certainly not disputing that but what we're saying is you you hold the dissenting view you're also an emotional wreck and you're not able to deliberate that there was some confusion if you read the if you read the conversation between the court and the parties after the fact there was some confusion about what actually transpired and the court x because i thought i'd believe the  under the impression that the court security officer heard the juror crying the court security officer went and relayed it to the judge and the judge dismissed the juror and i don't think the usa realized that the judge himself had talked to the juror about it and once the judge himself said no i said i talked to the juror i observed her demeanor i made the determination that she wasn't in an emotional state to be able to continue and i don't see the point of having i don't see the point of holding it up hold up canvassing this juror who was at having an emotional breakdown anyway at that point we weren't going to get the hearing so we didn't we didn't push for it at that point but we didn't it would have it puts us i believe puts us in a better and we understood what the judge had talked to the juror about and when my pain a different position that's correct your honor once again though the judge did discussing it with the parties after the fact the judge did disclose his thought process and his well in an accident investigation for aircraft they always go back and take the time with things and i want to make sure because it's hard sometimes we weren't there watching a vents that you see the exact timing jury and the trial is going along just fine we come back with the verdict we do the poll and the jury gets outed as the holdout eleven want some period of time later she's now emotional everyone knows her view she's got no cover and she's got no privacy in the jury room then there's proper and established channels for law was to happen at this moment she wants out judge can declare a mistrial can send them back or he can have a hearing and notify us and we can canvas the jury you may recall in the record i've required several times has she seen a doctor is she ill and it was cut short on that discussion to find out if there was any reasonable reason why she can't continue now her emotional reaction starts after she is out well it's not necessarily because she has to be dismissed from the jury before the jury was sent off for deliberations for something something drug court didn't inform us until the day after the fact as well you know right now i'm just saying look at it and in your sequence you say she didn't become emotional until it was discovered she was the hold up and in fact she had said request of the judge to be dismissed before that yes or they had already been delivering for a full day by that point that though that the issue would become contentious in the room was a reasonable certainty at nobody was in the courtroom or was this something that i'm going to have the judge dismissed the jury at the end of the liberations that we mr smith and i want formed of it after the fact and i understand what i mean physically what happened to the judge going to the jury room to the judge call the jury back and without you there what happened what he made to us was that the court services officer brought her out and then he took her down the hallway letter calm down in the cayman had ex parte to communicate on i'm talking about the earlier event where the juror said she'd like to be excused that apparently in the that's on the record as you see i wasn't present for but apparently he excused them for the evening and then at the end of the evening the first day of deliberations she asked to be relieved he said did she ask this isn't it no or did she know she actually personally asked in open court going to be replaced with all the jurors all letters present and barely the report was no and the no one saw fit to tell us until after she was excused you all if i remember from the transcript had  i'm i'm just trying to figure out where this occurred it was this in a courtroom where the juror they sample that the judge brought back the jury without counsel present said you're just mr the judge go into the jury room or do we know i read the record for the first time when it was handed to me and that's the first time i've learned of those proceedings that there was actually a proceeding in the courtroom in the court ok i was told what services officer said they want you guys going for the night yeah ok yeah usually the jurors are brought back into the courtroom because she