BALANCING JURY SECRECY AND THE RULE OF LAW - THE 2ND CIRCUITS GUIDE TO REMOVING NULLIFYING JURORS

The Second Circuit Court of Appeals was recently faced with the delica te question of wizen it is appropriate for a trial court to remove a d eliberating juror who refuses to follow the court's instructions on th e law. In an opinion with a multipurpose agenda, Judge Jose Cabranes n ot only set forth a standard for trial courts to use when considering removing a juror during deliberations pursuant to Rule 23(b) of the Fe deral Rules of Criminal Procedure, but also took the opportunity to bo th condemn the practice of jury, nullification and champion the import ance of secret and private jury deliberations. Given the diverse aims and pronouncements in the opinion in United States v. Thomas, 116 F.3d 606 (2nd Cir: 1997), it is not surprising that members of the legal c ommunity have both hailed and decried it. The opinion, while logically sound and on its face quire limited, does set a dangerous precedent. As such, the opinion calls for close scrutiny.