a deliberating juror is one that has to be closely scrutinized by the appellate court and st off this is obviously a difficult situation for any trop court judge to address you are dealing with a human being a juror who is facing a difficult set of circumstances and as is often the case as was true in this case is actively seeking to be removed from that jury however because this decision directly affects the rights of the defendant specifically the right to a jury trial under the th amendment and the rights does more specifically to a unanimous verdict of the jurors this court has adopted a very stringent standard for the review that discharge of ridge or specifically united states versus thomas this court said that in all cases in which a juror  seeking to be relieved or the court seeks to leave the juror on the basis of allegations by fellow jurors if there is any possibility that the jurors views on the merits of the case rather than a purposeful intent to game and just often there were there were multiple requests by the juror to be discharged the it is not a game ender because each of the times that the jurors sought to be discharged he made reference to the evidence and quote my evaluation of the case may be vastly different than before judge sydell caught him off and once that bell has been rung so to speak it cannot be unrung but just cybill kind of a because she didn't want him to under the any possibility rule that set out in thomas that is not sufficient because there is now a possibility that the jurors request to be discharged is based on his and his case evaluation of the evidence it cannot be discharged and the reasons for that rule are elaborated in thomas and brown which is the d c circuit case from which taken but it isn't close to absolute united states versus sproule the but i would submit in that case in every holding in that case addressing this issue the majority opinion as sproule is very careful  note that that decision was able to be made by judged chang dignity and the district court without any reference to the jurors deliberations every time the majority rules on that issue it states that and so that again is distinguishable from this case in which juror number six voluntarily and perhaps against the wishes of  district court judge did state on the record that his views of the evidence his evaluation of the case was different from those of his fellow jurors and was therefor five in the joint appendix the whole quote what i'm saying is that if i may speak your honor my evaluation of the case may be vastly different than i do recognize that it requires an inferen juror number six was going to finish that sentence with the other jurors or the rest of the jury but that is the only place he could have been going having started in the way a judge sidel them responded and said that your experience is only a problem that's going to prevent you from being open minded that's that's correct and he did say that he could not be fair and he could not be open minded i think the problem is for a district judge i mean you know and i said well you got to stay in there anyway i imagine that that would be a basis to be appealing in the event of a conviction because he didn't remove it and we can put this excited in a situation where they're damned doing their damned  whether whether that it's a good policy i gree with you just solvent is a hard question to debate it is what thomas requires and there are circumstances and this rule actually addresses one of them r but thomas requires the hard thing and there i don't think there can be a reasonable debate about what the text of thomas requires which is that juror cannot be dismissed that juror must be sent back to deliberate with the rest of the jury until a verdict is reached or some other outcome results and a mistrial of the case this is very demanding for the district court and demand a lot of district carol was convicted of conspiracy distribute narcotics after nearly weeks longer trial the evidence against him was overwhelming and included among other things nearly a no bias that prevented him from being fair and partial in particular a traumatic childhood experience during which he was falsely arrested and prosecuted by law enforcement seems to be his primary argument on appeal as stated on the record juror number six had multiple times that he could not be fair and impartial and he didn't know he didn't try counsel  number six responded yes your honor and the circumstances you're on are actually quite similar to those circumstances and the united states versus regime arrow which is cited in the united states versus thomas nice re and twenty eight as to the twelve they do not and in riviera the jury was deadlocked eleven to one and the juror came out and said that he encountered two men in his driveway the evening before the case was submitted to the jury and about whether that juror as simply stated that it was this extra no bias because the church did not want to have a confrontation but here but here your honor judge sydell stated on the record the judge said well credited the jurors sincerity about his inability to be fair and impartial based on his is unequivocal that he can't be fair and defense counsel raises the possibility well maybe he wants to avoid a contentious jury deliberation to which the court no to suppose that's possible based on his demeanor he quote seems sincere he seems like  he's trying but you take a look at i mean you could see that he saw our appeal and he know that before this note is arguable but now it's not whatsoever which in this course precedent that is a factual finding doesn't titled to was that in some circumstances it can be very difficult to determine whether a juror is a request to be removed sems from the sufficiency of the evidence or stems from some type of impermissible  bias and obviously there is a disagreement within sproule as to the scope of thomas any possibility role but i don't believe that any judge in participating in that decision believes that the thomas any possibility  when a judge can easily identify what the extra no bias is and do so without having to intrude within the jurors deliberative process and your honor removal of a deliberating juror his girlfriend had been arrested and mistreated by police as here the circumstances are even more extreme because as the juror himself who suffered this type of police misconduct and not his  under any implacable standard to review and be appellants does not dispute the majority of oster correct testimony concerted code words and language within is a direct examination instead it's limited sorrowful or whether he was as defense counsel at the trial level argued seeking to avoid a contentious debate is not relevant to the thomas analysis  comus is very clear as to what must be done in those circumstances if there is any possibility that the jurors are biased to be charge relates to the merits of the case that juror must not be discharged that is the conference where officer corrects testimony was stanch they discussed and perhaps most importantly on this exact issue in the jury instructions that each side's admitted in which the defense sought to limit officer carex testimony strayed outside of the bounds of the court's ruling with one with one eye mandation eye the judge said about asked if there were any questions that were answers that went beyond or were not permitted by the courts