Jordan v. United States

majority opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-CF-0191

MARQUETTE M. JORDAN, APPELLANT

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2018-CF1-006586)

(Rainey R. Brandt, Judge)

(Argued February 24, 2026 Decided August 13, 2026)

Jason K. Clark for appellant.

Elizabeth Gabriel, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb, Nicholas P. Coleman, and Natalie Hynum, Assistant United States Attorneys, were on the brief, for appellee.

Before DEAHL and HOWARD, Associate Judges, and THOMPSON, Senior Judge.

DEAHL, Associate Judge: Marquette Jordan was convicted of second-degree

murder and two related counts stemming from the stabbing and death of Ivan Lynch.

Jordan now appeals his convictions. He argues that, on the sixth day of jury

deliberations, the trial court improperly dismissed a deliberating juror who appeared

to be a holdout for acquittal.

More specifically, on that sixth day of deliberations, a juror sent a note to the

trial court expressing frustration with a fellow juror’s “lack of willingness to

participate in juror responsibilities and refusal to accept the court’s structure.” Later

that day, a different juror sent a note claiming that a “specific juror misunderstands

the fundamental responsibilities of being a juror in a criminal* trial,” opining that

this specific juror was “not comfortable making judgements against others.” The

trial court spoke with the juror in question—Juror 15—who stated that he had been

participating in deliberations but confirmed that he had not initially understood that

the jurors had to reach a unanimous agreement. When asked if he could continue

deliberating, Juror 15 responded, “I’m going to say no” because “I get my own little

idea that I hold onto and I think I’m going to hold onto it.” The government moved

to dismiss Juror 15, arguing that he could not fulfill his duty to deliberate, while

defense counsel argued that the court could not dismiss Juror 15 because his

reluctance to continue seemed to stem from his dissenting views about the case. The

trial court concluded that, because Juror 15 was “unequivocal” that he could not

“continue or resume deliberations,” he was “unavailable under the rules” and thus

had to be dismissed. An alternate juror took Juror 15’s place, and Jordan was

convicted of all counts after one day of deliberations.

Jordan now appeals, arguing that the trial court erred in dismissing Juror 15

because there was a reasonable possibility that his dismissal stemmed from his views

about the merits of the case. We agree. Our precedents instruct that “if the record

evidence discloses any reasonable possibility that the impetus for a juror’s dismissal

stems from the juror’s views on the merits of the case, the court must not dismiss the

juror.” Shotikare v. United States, 779 A.2d 335, 345 (D.C. 2001) (quoting United

States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999)). Two considerations lead

us to conclude that there was such a reasonable possibility here. First, no extrinsic

circumstance unrelated to the deliberations, such as illness or abusive conduct,

animated Juror 15’s dismissal. Second, the two jurors who complained about

Juror 15 did so only on the sixth day of deliberations, rather than at the outset, so it

appeared that Juror 15 had indeed actively deliberated in the case and it was the

substance of those deliberations that led him to disengage. His own explanation for

not wanting to deliberate further supports that conclusion: in his words, he had his

“own little idea that” he was “going to hold onto,” suggesting that he had made up

his mind and viewed further deliberations as futile. Because the record leaves open

a reasonable possibility that Juror 15’s dismissal stemmed from his views on the

merits of the case, and since removing “a juror because he is unpersuaded by the

Government’s case is to deny the defendant his right to a unanimous verdict,”

Shotikare, 779 A.2d at 344 (quoting United States v. Thomas, 116 F.3d 606, 621 (2d

Cir. 1997)), we reverse Jordan’s convictions and remand for a new trial.

I. Background

In April 2018, a group of friends that included Jordan and Ivan Lynch gathered

for a party. Jordan and Lynch got into a fight during the party and Lynch was stabbed

in the heart and died. The other attendees offered somewhat different accounts of

what happened, but two of them testified that Jordan picked up a butcher knife and

stabbed Lynch before fleeing the apartment. Jordan’s principal defense was that

another of the party’s attendees committed the murder, that yet another attendee

helped her cover it up, and that their friends were covering for them by falsely

implicating Jordan. Jordan was stopped shortly after the stabbing by police officers

who found him walking with Lynch’s car keys in his pocket. The officers found

Lynch’s phone in the area as well, but never recovered a knife or any other weapon.

The government charged Jordan with, among other things, one count of firstdegree murder while armed, one count of robbery while armed, one count of simple

assault, and one count of carrying a dangerous weapon (CDW). After a lengthy first

trial, the jury deliberated for three days and reached a partial verdict, acquitting

Jordan of robbery while armed. The jury then deliberated for two more days and

acquitted Jordan of first-degree murder but could not reach a verdict on the lesser5

included offense of second-degree murder, CDW, or simple assault, so the court

declared a mistrial.

The government then re-tried Jordan for the three surviving charges, and this

appeal arises from that second trial. The additional facts relevant to this appeal all

relate to this second jury’s deliberations, so we now turn to those.

Juror 15 asks to be removed on day five of deliberations

The first four days of jury deliberations were relatively uneventful so far as

the record reveals, with the caveat that we know little about what went on in the jury

room given the general secrecy of deliberations. The jury sent a handful of notes

asking to see some exhibits, for some technical assistance with court machinery, and

the like.

On the morning of the fifth day, the jurors sent two notes of some relevance

here. The first note asked: “In order to consider manslaughter, does the jury first

need to determine, unanimously, that [Jordan] is not guilty of second-degree

murder?,” suggesting that the jurors had reached some impasse on the lead charge.

The second note contained a request from Juror 15 “to be removed due to financial

reasons.” The trial judge answered yes to the first note and told Juror 15 she would

speak to him later in the day about the second note.

That afternoon, the trial judge interviewed Juror 15 about his request to be

removed. Although Juror 15 was retired and had not raised any issue with his

finances before, he explained that continuing jury service would keep him from

working ad-hoc jobs that he needed to pay his mortgage. When the trial judge

suggested half-day deliberations as an accommodation, Juror 15 was skeptical but

said “we can try it” and was sent back to resume deliberations. After this exchange,

the judge opined that “this job thing is a total ruse” because Juror 15’s answers were

“cagey” and he seemed like he “wants to get off the jury.” Neither party sought to

remove Juror 15 at that point.

The jury reports concerning Juror 15 on day six of deliberations

The jury returned the next morning for a sixth day of deliberations. Shortly

after they began deliberating that morning, Juror 28 sent the following note to the

court:

I am fearful that our jury could be held in contempt of

court due to one juror showing a clear lack of willingness

to participate in juror responsibilities and refusal to accept

the court’s structure. I feel that it was the juror’s

responsibility to disclose that when we were all

questioned/asked to perform our duties at the start of this

trial. This has nothing to do with [the] verdict, but the

disregard for the system itself.

The trial judge conferred with counsel and noted that it was odd to hear of a juror

“refusing to participate” at this stage of deliberations. She then decided to interview

Juror 28.

After warning Juror 28 not to reveal the substance of deliberations, the trial

judge asked her to clarify her note. Juror 28 said her issue was with Juror 15, 1 and it

stemmed from his “willingness to participate in conversation, period.” She then

described Juror 15’s attitude as “just ‘I won’t participate, I can’t do this. . . . I’m not

going to do this.’” The trial judge asked if “I won’t participate” was a direct quote

from Juror 15, but Juror 28 could only recall him saying: “I can’t make a decision.

Period.” The judge then asked whether Juror 15 was engaged in deliberations, and

Juror 28 said he was “not always” engaged and had sometimes played on his phone

during the past “couple days” of deliberations. She also noted that other jurors had

“expressed frustration both to me and all of us are sitting at the same table, so it’s

pretty evident how people are feeling.” The trial court told Juror 28 not to discuss

the matter with her fellow jurors and indicated that “we will get back to you,” and

deliberations then resumed.

To be precise, Juror 28 did not identify Juror 15 until some minutes later in the colloquy when the judge asked her to identify him. For the narrative’s sake, it helps to identify Juror 15 up front as the subject of the note and colloquy.

About half an hour later, before the court responded further, Juror 13 sent a

note to the court:

Good day to you! A specific juror misunderstands the

fundamental responsibilities of being a juror in a criminal*

trial. This juror throughout the process thought they were

part of a majority decision (like in civil juries), and didn’t

think s/he was obligating themselves to an unanimous

decision process. Now understanding that this role is part

of a unanimous decision has created averseness to

participating in the process due to emotional duress &

perceived burden of an unanimous decision. This juror has

made it clear that they are not comfortable making

judgements against others & being part of this process.

We believe the misunderstanding of the process of this

individual from the start is why this person wasn’t parsed

out during voir dire. We have asked for the original 12

juror questions so that we can more thoroughly help this

juror understand what should have been communicated

from the start of this process. It is unfair to this juror [and]

the greater process that s/he hadn’t had the correct

understanding for the past 4 weeks until now.

The parties discussed Juror 13’s note, which everyone understood to be about

Juror 15. Because it mentioned what appeared to be his unwillingness to sign onto a

unanimous verdict, defense counsel argued it was unclear whether Juror 15 had “a

closed mind or a dissenting mind” and added, “if it is a dissenting mind, then

according to case law he may not be excused.” The trial judge decided to interview

Juror 15 again, recognizing the “very fine line” between permissible reasons to

dismiss a juror and impermissible reasons, like having “an opinion that’s different

from his colleagues.”

Juror 15 is questioned and removed

After warning Juror 15 not to reveal the substance of deliberations, the trial

judge asked if he understood the final jury instructions, and he said “[n]o” because

he had not originally understood “that we all have to come to the same agreement.”

The trial judge also asked Juror 15 if he had been “an active participant in the

deliberations” to date, and he answered with an unequivocal “Yes.” Then, when the

judge asked Juror 15 how his new knowledge of the unanimity requirement affected

his ability to deliberate, they had the following exchange:

The Court: [H]as the issue that you didn’t understand the

jury instructions made it hard for you to deliberate up to

this point?

Juror 15: I would say yes.

The Court: Okay. So—but now that you understand that

the jury has to reach a unanimous verdict, are you able to

continue with your deliberations?

Juror 15: I’m going to say no.

The Court: Why?

Juror 15: I have—I get my own little idea that I hold onto

and I think I’m going to hold onto it.

The Court: I’m not sure what you mean by that. Can you

explain it without—without telling—

Juror 15: You know—

The Court: Hold on. Can you explain it without telling us

what you and your fellow jurors are talking about?

Juror 15: That’s kind of hard to do. It’s—I don’t know

how to state this.

The judge stopped Juror 15 before he could say more.

The parties then discussed the matter outside of Juror 15’s presence. Defense

counsel emphasized that his ambiguous response suggested he may have stopped

deliberating because he had reached a decision at odds with his fellow jurors’ views

and that “everybody else is picking on him because they’re getting pissed off.”

Defense counsel suggested the trial judge ask Juror 15 if he could “continue

deliberations without sacrificing [his] individual judgment.” The government

opposed that inquiry and requested instead that the judge ask Juror 15 if he had “an

issue passing judgment and [with] the process as a whole.” The judge remarked that

Juror 15 had “essentially answered” that question already, then reviewed Juror 13’s

note again and said: “It’s clear from that juror note that whatever the problem is here,

he’s not participating in the process. That is completely different from having made

your mind up some way and . . . the majority is going this way and you’re going this

way.” The judge also opined that Juror 15’s purported misunderstanding of the

unanimity requirement was mere “gamesmanship” and that Juror 15 “couldn’t get it

his way with the financial issue so now he’s back claiming that he didn’t understand”

the unanimity requirement.

The trial judge resumed interviewing Juror 15 and asked, as the government

suggested, if he had “any issue passing judgment.” He replied: “Yes, I do.” The

judge then asked if his “financial situation affected [his] ability to deliberate,” and

Juror 15 said “[n]o.” The judge asked one final question: “[A]re you telling us that

the fact that you can’t pass judgment is affecting your ability to deliberate?” Juror 15

replied, “I would say yeah.” Once again outside Juror 15’s presence, the government

argued that Juror 15 should be removed because “he cannot deliberate and reach a

judgment.” Defense counsel countered that Juror 15 had been actively participating

in deliberations and seemed to have simply “reached his decision.”

The trial judge ultimately dismissed Juror 15. After discussing Juror 15’s

“perceived lack of participation” in deliberations, the trial judge remarked that he

was “asked in two different ways whether or not now that he understands the

responsibility of the jury to reach a unanimous verdict . . . could he continue or

resume deliberations, and . . . his unequivocal answer was no.” The judge concluded

that “him not being able to continue to deliberate makes him unavailable under the

rules. And I’ve got no choice but to remove him from this jury.” Juror 15 was

replaced with an alternate, and the reconstituted jury deliberated for roughly one day

before returning a guilty verdict on all counts. Jordan now appeals his convictions.

II. Analysis

The dispositive issue in this appeal is whether the trial court abused its

discretion when it removed Juror 15 from the jury six days into deliberations. See

Israel v. United States, 109 A.3d 594, 612 (D.C. 2014) (reviewing juror dismissal

decisions for abuse of discretion). The parties agree, and our caselaw is clear, that

the controlling standard prohibits a trial court from dismissing a deliberating juror

“if the record evidence discloses any reasonable possibility that the impetus for a

juror’s dismissal stems from the juror’s views on the merits of the case.” Shotikare

v. United States, 779 A.2d 335, 345 (D.C. 2001) (quoting United States v.

Symington, 195 F.3d 1080, 1087 (9th Cir. 1999)).

Jordan argues that the trial court did not faithfully apply the Shotikare standard

and that there is a reasonable possibility on this record that Juror 15’s

“unwillingness” to deliberate further stemmed from his entrenched views favoring

acquittal, and that he viewed further deliberations as futile. The government counters

that Juror 15’s refusal to participate in deliberations had nothing to do with his view

on the merits and amounted to misconduct that justified his dismissal. We agree with

Jordan that, based on this record, there was a very real possibility that the impetus

for Juror 15’s dismissal was that he had entrenched views about the merits of the

case that differed from his fellow jurors’ views.

Before diving into the facts of this case, in Part II.A we discuss the Shotikare

standard and the principles and precedents underlying it. These cases are quite

stringent about when a trial court can dismiss a deliberating juror, but we have since

described at least two situations where a juror can be removed without unduly

intruding into the jury’s deliberations while still preserving the defendant’s right to

a unanimous verdict. They are, as we will discuss in Part II.B: (1) if an extrinsic

circumstance separate from the substance of the deliberations animates the juror’s

dismissal; and (2) if a juror refused to participate or had a closed mind from the

outset of deliberations. Outside of those two scenarios, our precedents have never

approved of a mid-deliberation removal of a juror from a criminal trial. That is no

doubt because it is hard to be firmly convinced that the impetus for a juror’s

dismissal is unrelated to their view on the merits outside of those scenarios. While

we do not foreclose that some third scenario might exist, we explain in Part II.C why

this case does not present such a scenario. When a juror stops deliberating several

days into deliberations, the court must be especially attuned to the reasonable

possibility that their views on the merits animated their disengagement, and there

are strong clues in this record that was the case here.

A. The Shotikare standard and the cases that animated it

In Shotikare, we adopted the standard that a deliberating juror cannot be

dismissed “if the record evidence discloses any reasonable possibility that the

impetus for [their] dismissal stems from the juror’s views on the merits of the case.”

779 A.2d at 345 (quoting Symington, 195 F.3d at 1087). We derived that exacting

standard from several federal circuit courts of appeals cases, principally United

States v. (Warren) Brown, 823 F.2d 591, 596-97 (D.C. Cir. 1987), United States v.

Thomas, 116 F.3d 606, 621-22 (2d Cir. 1997), and Symington, 195 F.3d at 1087. See

Shotikare, 779 A.2d at 344-45 (citing all three cases as support for this standard and

discussing them throughout). Because each of those cases provides some helpful

backdrop for our Shotikare standard, we provide a recap of their relevant holdings.

The first in the trio is the D.C. Circuit’s opinion in (Warren) Brown. (Warren)

Brown involved a thirteen-week trial, and after five weeks of deliberations, one of

the jurors sent a note saying, “I Bernard Spriggs, am not able to discharge my duties

as a member of this jury.” 823 F.2d at 593-94. Upon questioning, Spriggs indicated

that he “disagree[d] with the law” that the defendants were charged under and would

not follow the court’s instructions because of how that law is “written and the way

the evidence has been presented.” Id. at 594. He further said that, “[i]f the evidence

was presented in a fashion in which the law is written, then, maybe, I would be able

to discharge my duties.” Id. The court dismissed the juror after that colloquy “on the

ground that Spriggs would not follow the law and thus could not discharge his duty

as a juror.” Id. at 595.

The D.C. Circuit reversed. Despite the juror’s clear statement that he was not

able to discharge his duties, and his expressed disagreement with the law the

defendants were charged under, the court concluded there was a “possibility that

juror Spriggs requested to be discharged because he believed that the evidence

offered at trial was inadequate to support a conviction.” Id. at 596. Importantly, as

(Warren) Brown makes clear, when examining whether there is a possibility that the

impetus for dismissal was rooted in the juror’s views of the case, the cases are

concerned not with the judge’s motivations for dismissing the juror. They are instead

concerned with whether the reports that led to the juror’s dismissal possibly stemmed

from some disagreement on the merits. Sometimes, as in (Warren) Brown, the

reports come from a juror who is himself seeking to be removed, so the inquiry is

about whether that juror is seeking to be removed because of his dissenting views

about the case and an attendant desire to put an end to his apparent stalemate with

fellow jurors. Id. at 594. More commonly, as in the next two cases discussed, the

complaints come from fellow jurors, and the question becomes whether their

complaints about their fellow juror stemmed from a disagreement on the merits. See,

e.g., Symington, 195 F.3d at 1088 (examining whether “the other jurors’ frustrations

with” the removed juror stemmed “from the fact that she held a position opposite to

theirs on the merits of the case”).

The Second Circuit confronted the latter scenario in Thomas. Thomas

concerned a series of complaints about “Juror No. 5” on the second and third days

of deliberations. 116 F.3d at 609-11. On the second day of deliberations, one juror

indicated in a note that “each time a vote was taken, [Juror No. 5] voted not guilty

and had indicated verbally that he would not change his mind.” Id. at 611. The next

day, another juror reported that Juror No. 5 had a “predisposed disposition” that led

to the jury being unable to reach a verdict. Id. The court then interviewed each of the

jurors on that third day of deliberations, and “at least five of the jurors indicated that

Juror No. 5 was unyieldingly in favor of acquittal for all of the defendants.” Id. The

court dismissed Juror No. 5—“the only black juror in a case involving black

defendants”—concluding based on those interviews that he “was ignoring the

evidence in favor of his own, preconceived ideas about the case” and essentially

engaged in “nullification.” Id. at 609, 612. More specifically, the court found that he

would not “convict [the defendants] no matter what the evidence was,” opining that

his views were based on “preconceived, fixed, cultural, economic, or social reasons

that are totally improper and impermissible.” Id. at 612.

The Second Circuit reversed. While the court agreed that a juror who “intends

to nullify the applicable law” can be properly dismissed, id. at 614, it stressed that

trial courts frequently “have no means of investigating the allegation” of juror

nullification “without unduly breaching the secrecy of deliberations,” id. at 621. And

“to determine whether a juror is bent on defiant disregard of the applicable law, the

court would generally need to intrude into the juror’s thought processes,” something

which the court “may not delve deeply into.” Id. (quoting (Warren) Brown, 823 F.2d

at 596). That leaves the court with precious “little evidence” to distinguish “between

the juror who favors acquittal because he is purposefully disregarding the court’s

instructions on the law, and the juror who is simply unpersuaded by the

Government’s evidence.” Id. The Second Circuit concluded that it was “required to

vacate these judgments because the court dismissed Juror No. 5 largely on the

ground that the juror was acting in purposeful disregard of the court’s instructions

on the law, when the record evidence raises a possibility that the juror was simply

unpersuaded by the Government’s case against the defendants.” Id. at 624.

The third case is the Ninth Circuit’s opinion in Symington—arising from a

prosecution of former Arizona Governor Fife Symington—which echoed the same

principles and reached the same result as (Warren) Brown and Thomas. Symington

involved a juror who was dismissed on the eighth day of deliberations after her

fellow jurors first reported she “stated [her] opinion prior to review of all counts”

and later reported that she was not “properly participat[ing] in the discussion with

us,” listing as reasons that juror’s “[r]efusal to discuss views with other jurors,” her

“[i]nability to maintain a focus on the subject of discussion,” and her “[i]nability to

recall topics under discussion,” among other things. 195 F.3d at 1083. The court

separately questioned each of the subject juror’s fellow jurors about their note, and

“[t]hey all stated that [the juror in question] appeared confused and unfocused during

deliberations.” Id. The court also spoke with the juror in question, who explained

that she “can’t agree with the majority all the time,” and that she “became

intimidated when everyone talked at once and demanded that she justify her views.”

Id. at 1084. The trial court dismissed that juror, opining that she was “either

unwilling or unable to deliberate.” Id.

The Ninth Circuit reversed and articulated the “reasonable possibility”

standard that this court later adopted in Shotikare. 2 Id. at 1087-88 & n.5. The Ninth

Circuit recognized the “special challenges” a trial court faces when determining

whether an issue among jurors “stems from disagreement on the merits of the case.”

Id. at 1086. Trial courts are rather hamstrung in investigating whether juror

The D.C. and Second Circuits articulated a slightly different standard, holding that dismissal was inappropriate if there was “any possibility that the request to discharge stems from the juror’s view” on the merits of the case. (Warren) Brown, 823 F.2d at 596 (emphasis added); Thomas, 116 F.3d at 621-22. This court followed Symington’s lead in clarifying that the possibility needs to be a reasonable one.

complaints stem from disagreements on the merits because any inquiry into the

content of the jury’s discussions will generally impinge on the secrecy of those

deliberations. See id. (“[A] court may not delve deeply into a juror’s motivations

because it may not intrude on the secrecy of the jury’s deliberations.” (quoting

(Warren) Brown, 823 F.2d at 596)). And without a full investigation, the court runs

a substantial risk of dismissing a holdout juror who has prompted complaints

because they have simply become a thorn in their fellow jurors’ sides or gone quiet

from being browbeaten, which would violate the defendant’s constitutional right to

a unanimous verdict. Id. at 1086-87 (“[W]here a request for juror dismissal focuses

on the quality of the juror’s thoughts about the case and her ability to communicate

those thoughts to the rest of the jury, ‘the court will likely prove unable to establish

conclusively the reasons underlying’ the request for dismissal.” (quoting (Warren)

Brown, 823 F.2d at 596)). So while the Ninth Circuit acknowledged that, of

necessity, the record was unclear as to what animated the complaints with the

ultimately removed juror, there was a reasonable possibility “that the other jurors’

frustrations with her derived primarily from the fact that she held a position opposite

to theirs on the merits of the case.” Id. at 1088.

With those three cases as a backdrop, we now turn back to Shotikare.

Shotikare relied extensively on each of those cases and recognized that, as a baseline,

there can “be no inquiry into the juror’s views on the merits of the case” because

“[j]ury deliberations are presumptively secret.” 779 A.2d at 344; see also Thomas,

116 F.3d at 623 (courts must choose “to protect deliberative secrecy at the risk of

leaving some juror misconduct beyond the court’s power to remedy”). Given that

presumptive secrecy, and to avoid subtly influencing the jury, a trial judge must

proceed “with caution, tact, and respect for the prerogatives of the jury.” Shotikare,

779 A.2d at 345. The judge “may not delve deeply into a juror’s motivations,” and

certain topics are categorically off limits, such as the “jurors’ views of the case, the

back and forth among them concerning the evidence or the application of the law to

the facts, [and] their numerical division on the merits.” Id. (quoting (Warren) Brown,

823 F.2d at 596).

Shotikare recognized that, as a result of those limitations, the record would

typically be “less than exhaustive” and the true “reasons for the disruption of

deliberations may be less than clear.” Id. But given the paramount importance of

secrecy and unanimity in the deliberative process, we adopted the presumption that

a trial judge cannot dismiss a juror if there is “any reasonable possibility” that the

complaints about the juror leading to dismissal stemmed from their substantive

views about the case. See id. If such a possibility exists, the judge “must either

declare a mistrial or send the juror back to deliberations with instructions that the

jury continue to attempt to reach agreement.” Id. (quoting (Warren) Brown, 823 F.2d

at 596).

B. Precedents since Shotikare and the federal cases that animated it

Several of our precedents have since applied the Shotikare standard when

analyzing the dismissal of a deliberating juror. See (Thalia) Brown v. United States,

818 A.2d 179 (D.C. 2003); Braxton v. United States, 852 A.2d 941 (D.C. 2004);

Israel v. United States, 109 A.3d 594 (D.C. 2014); Pitt v. United States, 220 A.3d

951 (D.C. 2019). Those cases have identified two scenarios in which a trial court

can properly dismiss a deliberating juror in a criminal trial without unduly piercing

the substance of the jury’s deliberations and still respecting the defendant’s right to

a unanimous jury. The first, and more common of the two scenarios is (1) when there

was an identifiable extrinsic circumstance, unrelated to the substance of

deliberations, that animates the juror’s dismissal. The second, and more unusual

scenario is (2) when the juror had entered deliberations with a closed mind, and was

effectively engaged in juror nullification. We expand on each scenario in turn, and

then explain why (3) a juror who initially participates in deliberations and later

disengages generally cannot be dismissed unless the trial court is firmly convinced

that there is no reasonable possibility that such disengagement stems from juror

disagreements about the merits of the case.

1. Circumstances extrinsic to the deliberations as a ground for dismissal

The more typical scenario where a trial judge can properly dismiss a

deliberating juror is when some identifiable extrinsic circumstance detached from

the substance of deliberations and wholly divorced from the jurors’ views of the case

renders the juror unavailable or unfit to continue. That is, if the judge can identify,

without unduly intruding into the deliberative process, that something totally

separate from the jurors’ views about the merits of the case is preventing a juror from

deliberating, that juror can be dismissed. See Symington, 195 F.3d at 1087 n.6

(explaining, for example, that questions of juror bias generally focus on an “event”

or “relationship between a juror and a party” that is “easily identifiable and subject

to investigation and findings without intrusion into the deliberative process”

(quoting Thomas, 116 F.3d at 621)); see also United States v. Kemp, 500 F.3d 257,

303 & n.25 (3d Cir. 2007) (“reasonable possibility” rule does not apply if an

investigation into juror bias can focus on “a particular act that [gave] rise to the bias”

without “implicat[ing] the secrecy of jury deliberations”).

In Pitt, for example, we upheld the dismissal of a juror on the second day of

deliberations because an “observable illness” rendered the juror “‘unable to perform’

her sworn ‘duties.’” 220 A.3d at 970-72 (quoting Super. Ct. Crim. R. 24(c)(1)). The

juror there reported to the trial judge that she was “not well at all,” and after

questioning her, the judge confirmed that she “didn’t look” or “sound well.” Id. at

969. We found the trial judge had “developed an appropriate basis for determining

that [the juror’s] request to be released was in fact due to her observed illness” by

“interviewing her, inquiring about her condition, and asking whether the court could

make accommodations” before dismissing her. Id. at 970-71.

It is easy to imagine other circumstances where a juror cannot perform their

duties because of something entirely separate from the deliberative process. Among

the more routine reasons are a juror’s serious financial hardship, 3 an illness in their

family that requires personal attention, inflexible travel plans, and the like. See

Shotikare, 779 A.2d at 345 n.15 (discussing cases “where the juror is incapacitated

by illness or trauma or other circumstances beyond her control,” has had a “death in

her family or comparable shock,” or is biased due to a “relationship with a party or

witness”); Thomas, 116 F.3d at 613 (citing cases involving a business trip, illness,

car accident, serious emotional distress, and observance of a religious holiday).

Then there are the aberrant circumstances where a juror engages in blatant

misconduct during deliberations separate and apart from their views about the case.

We encountered this in Shotikare itself, where a juror sent a note on the first day of

While Juror 15 purported to be experiencing financial hardship on the fifth day of deliberations, recall that the trial court discredited him about that, and the next day Juror 15 reported that his finances were not affecting his ability to deliberate.

deliberations reporting that “she had been subjected to ‘verbal and physical abuse,’”

and felt that her “life has been threatened” by another juror. 779 A.2d at 340. Within

hours of that note, before the court could respond to or investigate it, the jury sent

two more notes saying it was “deadlocked” and that some “jurors have stopped

listening, paying attention or participating [in] any way in the deliberations.” Id. at

340-41. Upon investigation, the offending juror admitted that she had “threatened”

to “bite” another juror, and “[t]hings almost came to a fight” in the jury room before

she again threatened to “beat” the other juror’s “butt” if she did not “leave [her]

alone.” Id. at 342. The other jurors indicated that the offending juror had threatened

“to throw [another juror] up against the wall,” and “basically” said “‘I’ll beat the hell

out of you,’” which required the two jurors to be physically separated. Id. at 341-42

& n.8. While the foreperson said the altercation had “nothing to do with the case”

and was “unprovoked,” another juror was more equivocal, saying that it stemmed

from a “disagree[ment]” that the offending juror took “personally,” without

indicating whether that disagreement was about the case. 4 Id. at 341-42 & n.9.

We do not doubt that a violent and threatening deliberating juror might properly be dismissed even if, in some sense, their violent outbursts in the jury room were prompted by disagreements about the case. Such egregious juror misconduct is attenuated enough from the merits of the case that the misconduct itself, rather than the underlying disagreement about the merits, can be properly viewed as the source of the fellow jurors’ complaints about them and thus the impetus for their

We upheld the dismissal of the threatening juror. We did so because the clear

impetus for the other jurors’ complaints, and the grounds for the offending juror’s

removal, were her threatening words and conduct rather than her “position on the

merits or refusal to align with the majority.” See id. at 345-46. The trial court’s

“careful and fair inquiry” in Shotikare revealed that the sole impetus for the juror’s

dismissal was her threatening words and conduct, so there was no “reasonable

possibility” that it stemmed from that juror’s view on the merits. Shotikare, 779 A.2d

at 340, 345-46.

2. A juror’s closed mind at the outset of deliberations as a ground for dismissal

Next are cases that are closer cousins to this one, where a juror has refused to

deliberate, albeit from the outset of deliberations. The juror who refuses to deliberate

from the outset has engaged in misconduct and defied the court’s instructions in a

way that is unrelated to their views about the merits of the case, which is what

justifies their dismissal. See (Thalia) Brown, 818 A.2d at 184; Israel, 109 A.3d at

612-13. And that misconduct cannot be traced back to any disagreement with fellow

dismissal. See United States v. Litwin, 972 F.3d 1155, 1169 (9th Cir. 2020) (“Blatant juror misconduct”—such as a violent threat toward another juror, removing caserelated notes from the jury room, or lying to the court about ex parte contacts—can “plainly justif[y] dismissing a juror.”).

jurors on the merits of the case, given that it arose at the outset of deliberations,

before such views could be expressed or solidified.

In (Thalia) Brown, for instance, the jury sent a note less than two hours after

deliberations began indicating it could not reach a verdict as to one of the defendants

“for reasons unrelated to debate about the evidence,” and some minutes after the

judge instructed them to continue deliberating, they sent a second note describing

the issue as one “of juror nullification.” 818 A.2d at 181. After another instruction

and two more notes, one of which was from the subject juror, the judge interviewed

every juror on the panel and “credited the broad consensus” among them that the

subject juror “had refused to participate in the deliberation process from the

beginning,” as a “political statement,” so that dismissal was warranted. Id. at 183-84,

186-87 & n.6 (emphasis added).

We reached the same result in Israel, where within the first “few hours” of

deliberations the jury sent a note indicating that one juror’s “mind is closed.” 109

A.3d at 608, 614 n.33. All other jurors agreed, upon being interviewed, that the juror

“went into deliberations with a closed mind” and was “unwilling to consider the

views of others.” Id. at 608-10 (emphasis added). The judge then dismissed the juror,

crediting the consensus view that “her mind . . . was closed before they started” and

“before they even began talking about the case,” such that she “entered the

deliberations with a closed mind.” Id. at 610.

Like (Thalia) Brown, Israel identified the timing of the juror’s reported

unwillingness to deliberate as a critical factor in upholding the juror’s dismissal.

When evaluating whether it was reasonably possible that the juror was “removed

because she was a dissenting voice or because of her views on the evidence,” we

“deem[ed] it important” that the report “came to light early after the case had gone

to the jury, when there were still what the foreperson described as ‘lots’ of

disagreements among the jurors.” Id. at 614. This timing was important because, as

we opined, “no juror could be identified as a dissenter” so early in the deliberations,

before there was any reason to think the jurors had solidified or even expressed clear

views. Id. We rejected the appellant’s reliance on the Ninth Circuit’s opinion in

Symington, discussed above, because “the jury note [in Symington] was sent when

the jury had been deliberating for a week,” whereas in Israel, “the jury had had the

case for only a few hours.” Id. at 614 n.33. We further found it “[n]otabl[e]” that,

“following the replacement” of the juror in question, “deliberations continued for a

further three days before the jury reached its verdicts, suggesting that there remained

much room for discussion at the time” the juror was removed. Id. at 614. The trial

judge in Israel also appreciated the importance of timing in the Shotikare analysis,

noting—in language relevant here—that he would not have dismissed the juror if

“we were in the fifth day of deliberations, and [the jury] had thoroughly discussed

the case.” Id. at 610.

These cases underscore that, if the jury has just begun deliberations, a juror’s

unwillingness to participate in deliberations from the outset can be properly viewed

as misconduct that is detached from their views about the merits of the case, and that

misconduct might warrant their dismissal. In that circumstance, there is no

reasonable possibility that the juror had gone quiet due to their disagreement with

fellow jurors because deliberations had only just begun, so that the juror had not yet

even had an opportunity to assess those opposing views or how rigid they may be.

See United States v. Christensen, 828 F.3d 763, 811 (9th Cir. 2015) (finding it

“highly unlikely” that a juror’s reported unwillingness to follow the law was

motivated by a disagreement on the merits because the jury note came one hour after

deliberations began, which is “unlikely to have been enough time for the jurors to

have ascertained such a difference in their views on the evidence”); see also Braxton,

852 A.2d at 946-49 (“reluctan[tly]” upholding dismissal of a juror who indicated a

bias against police officers in the early hours of the first day of deliberations). 5

That is not to say a trial court can dismiss a juror any time they refuse to deliberate in the early hours of deliberations. United States v. Litwin, discussed more below, involved a juror who stated just three hours into deliberations that “no matter

But as the deliberations become more extended, it becomes all the more

critical for the court to entertain the possibility that reports of a juror’s unwillingness

to deliberate stem from some entrenched disagreement on the merits. While this

court has never previously confronted the dismissal of a juror who had stopped

deliberating only after several days of deliberations, many other courts have

confronted that scenario, and we turn to those cases now.

3. A juror who disengages after days of deliberations typically cannot be dismissed

There is a striking and important difference between a juror who refuses to

engage in deliberations from their outset and one who has simply been so worn down

by extended deliberations that they disengage from them. While the first juror could

be seen as engaged in misconduct by defying the court’s instructions, the second

juror is likely not engaged in misconduct at all. And even if they were, it is very hard

to discount the possibility that the latter juror’s disengagement stemmed from their

views about the merits of the case and the protracted deliberations themselves, so

that Shotikare bars their dismissal regardless of whether that is properly categorized

what, she will not change her mind.” 972 F.3d at 1174. The Ninth Circuit found her dismissal was improper because there remained “a reasonable possibility” that this juror’s “views on the merits of the case” are what prompted two fellow jurors’ complaints. Id.; see also id. at 1177 (noting that Christensen “did not create a brightline rule allowing jurors to be dismissed so long as the jury had only been deliberating a short time”).

as misconduct. The federal cases discussed above—Symington, (Warren) Brown,

and Thomas—all illustrate that point. We now discuss several more recent cases

from both state and federal courts that have specifically highlighted the difference

between a juror who refuses to engage from the outset of deliberations and one who

disengages only after substantial deliberations have taken place. Importantly, we

have not found any case where an appellate court has approved of a juror’s dismissal

based on a mere refusal to continue deliberating several days into the deliberations,

and the government has not pointed us to any such case either. 6

The Georgia Supreme Court has captured the important difference between a

juror who refuses to deliberate from the outset and one who later disengages in a trio

of cases: Jones v. State, 875 S.E.2d 737 (Ga. 2022); Delgado v. State, 848 S.E.2d

665 (Ga. 2020); and Mason v. State, 535 S.E.2d 497 (Ga. 2000). In Jones, the court

did not dispute the trial court’s findings that “as early as two hours into

deliberations,” one of the jurors had “declined to deliberate further.” 875 S.E.2d at

The only possible candidate we have found is United States v. Abbell, 271 F.3d 1286 (11th Cir. 2001). The Abbell opinion never specifies how long the jury had deliberated before one juror was removed, but the opinion is clear that “early in the process” the juror in question “made comments that she did not have to follow the law,” “was not going to follow the law,” “and that the court’s instructions were only advisory and not binding on the jury.” Id. at 1303 & n.18 (emphasis added). While it is not entirely clear what the court meant by “early in the process,” that would not seem like a fair description of somebody whose recalcitrance arose only after days of deliberations.

747. But that was no basis for dismissing that juror, the court reasoned, as it appeared

that the juror had simply “reached a firm conclusion as to the counts before the jury

and declined to deliberate further.” Id. The court explained that the law “does not

require a juror who has properly reached a fixed opinion as to guilt or innocence to

continue to deliberate indefinitely in order to fulfill the juror’s duty.” Id. at 749. “At

some point a juror who has reached and communicated a firm conclusion as to guilt

or innocence may stop engaging with other jurors in deliberations,” seeing as how

“[m]ost people lack the fortitude to debate an issue with strangers indefinitely.” Id.

As the court concluded, “that does not mean that they are ‘unable to perform their

duty’” as a juror. Id. (citing Ga. Code Ann. § 15-12-172).

Jones echoed what the Georgia Supreme Court had said earlier in Delgado

and Mason. Delgado held that the court abused its discretion when removing a juror

who participated in deliberations for five hours before making up his mind and

disengaging from further deliberations. See 848 S.E.2d at 669. Delgado explained

that the “holdout juror . . . did not fail to fulfill his obligations as a juror, but rather

had reached a decision, which was based on his review of the testimony and the

witnesses’ credibility, after meaningfully deliberating and trying to reach a verdict,”

and simply thought “the deliberations were no longer productive.” Id. at 670. Mason

reached the same conclusion where the trial court removed a juror who self-reported

on the third day of deliberations “that she did not want to deliberate further and

would not change her vote.” 535 S.E.2d at 498, 500. The court explained that the

juror’s disengagement “did not amount to a refusal to deliberate,” because it came

“only after she and the other jurors had already deliberated for more than two days.”

Id. at 500.

The California Supreme Court has likewise articulated the above distinction,

explaining that a “juror who has participated in deliberations for a reasonable period

of time may not be discharged for refusing to deliberate, simply because the juror

expresses the belief that further discussion will not alter his or her views.” People v.

Cleveland, 21 P.3d 1225, 1238 (Cal. 2001). In Cleveland, the jury sent a note on the

second day of deliberations indicating that one juror “does not show a willingness

to apply the law.” Id. at 1227-28. When asked whether the juror in question had

made up his mind prior to deliberations and was refusing to discuss the case, the

foreperson responded: “I don’t know if I could say that their mind was made up

before we went into the room.” Id. at 1228. He continued that the juror would only

“[h]alfheartedly” listen to other jurors, refused to discuss the elements of the offense,

and had told other jurors: “You’re not going to sway my mind.” Id. The trial court

then polled the jurors about whether any of them felt “that any other juror or

jurors . . . are not deliberating.” Id. Ten of the eleven jurors, discounting the one in

question, answered in the affirmative. Id. The trial judge dismissed the subject juror,

and the California Supreme Court overturned the defendant’s convictions. It

explained that the record showed that the juror in question had engaged in

deliberations, and “it was the conclusion arrived at by [that juror] that was” the issue

that prompted his fellow jurors’ complaints. 7 Id. at 1238; see also People v. McGhee,

565 P.3d 963, 976 (Cal. 2025) (reversing dismissal of juror who had deliberated “for

the better part of three court days” before jurors complained that he was not

participating).

Also consider the Ninth Circuit’s recent application of Symington in United

States v. Litwin, 972 F.3d 1155 (9th Cir. 2020). Just three hours into deliberations

following a ten-week trial, the jury in Litwin sent a note stating: “Jury cannot come

to a decision. We have a jur[or] that says no matter what, she will not change her

mind.” Id. at 1162. Upon questioning, the juror herself acknowledged that she had

told her fellow jurors “[t]wo to three times” that her mind was made up and she

“would not change” it. Id. at 1165-66. The trial court dismissed the juror, reasoning

that further deliberations would be “a waste of time” given the juror’s announcement

Cleveland discussed Symington, (Warren) Brown, and Thomas at some

length, and agreed with those cases on several core principles, but expressly departed from them about others. 21 P.3d at 1236-37. For example, Cleveland did not share the federal circuit courts’ aversion to probing jury inquiries, and the court reiterated its own prior precedent that permits a trial judge to make “whatever inquiry is reasonably necessary to determine” whether a juror should be removed. Id. at 1237. It also did not adopt the “any reasonable possibility” standard articulated in Symington and later adopted by this court. Id.

“from the get-go” that her mind was made up. Id. at 1166-67. The Ninth Circuit

vacated the resulting convictions. The court acknowledged two fellow jurors’ reports

that the removed juror “would not engage in the deliberative process,” id. at 1174,

but explained after extensively reviewing the record that the juror in question had in

fact been deliberating, id. at 1175-76. While the juror’s recent disengagement might

be seen by some as a refusal to deliberate, the court posed a powerful rhetorical

counter to that instinct: “If a juror has reached a decision, at what point is potential

unwillingness to alter that position a failure to deliberate as opposed to a reflection

of the juror’s sincerely held view of the evidence presented?” Id. at 1170. The jury’s

own note indicated that the problems with the subject juror stemmed from “a

disagreement about the case itself,” as it indicated up front that the juror “cannot

come to a decision.” Id. at 1175.

While we doubt that a juror who has stopped deliberating only after days or

weeks of engagement can fairly be described as committing misconduct, that is

ultimately beside the point. Either way, after such a substantial period, a trial court

must be especially attuned to the heightened possibility that such disengagement

“stems from the juror’s views on the merits of the case,” Shotikare, 779 A.2d at 345,

and the court cannot dismiss that juror unless it is firmly convinced that any issue

with them is unrelated to their views about the merits of the case. 8

C. Applying the precedents to this case

We now turn to the present case and review the trial court’s decision to replace

Juror 15 on the sixth day of deliberations for an abuse of discretion. 9 Jordan mounts

two challenges related to Juror 15’s dismissal, arguing that: (1) the trial judge failed

to recognize her discretion and did not apply the Shotikare standard; and (2) the

That is not to say that the complaining jurors are necessarily acting in bad faith when reporting that a fellow juror is not deliberating. That is certainly one possibility—a juror in the majority can easily dress up a disagreement on the merits as a complaint about a holdout juror’s general refusal to deliberate in order to break an apparent deadlock. See Litwin, 972 F.3d at 1170 (“[D]isagreements on the merits can ‘certainly manifest themselves in concerns about a juror’s reasonableness or general capacity as a juror.’” (quoting Symington, 195 F.3d at 1088)). But we suspect the more common scenario is that the jurors in the majority sincerely believe that the dug in and/or disengaged holdout juror is abdicating their duty to deliberate. See Abbell, 271 F.3d at 1302 (“A risk exists . . . that ten or eleven members of a jury that have collectively reached agreement on a case’s outcome may thereafter collectively agree that the one or two hold-outs—instead of honestly disagreeing about the merits—are actually refusing to apply the law as instructed by the court in an impermissible attempt to nullify the verdict.”).

We disagree with the government’s suggestion that we should review this claim for plain error because it was not adequately preserved. Defense counsel clearly and persistently objected to Juror 15’s removal, cogently explaining that it was not clear whether he had “a closed mind or a dissenting mind,” adding that “if it is a dissenting mind, then according to case law he may not be excused,” and further positing that it appeared “everybody else is picking on him because they’re getting pissed off” that he disagrees with them. The present claim was more than adequately preserved.

record reveals at least a reasonable possibility that the impetus for Juror 15’s

dismissal was his view on the merits of the case.

We summarily reject his first argument—the trial judge carefully approached

this issue and showed great respect for the dual interests of protecting the secrecy of

jury deliberations while protecting Jordan’s right to a unanimous jury. We do not

think her failure to specifically recite Shotikare or the “reasonable possibility”

standard verbatim is any indication that she did not apply its principles. See Hobbs

v. United States, 18 A.3d 796, 800 (D.C. 2011) (trial court need not recite a precise

rule or standard “so long as it ‘was scrutinizing whether [the juror] had the capacity

to continue to serve as a juror’” (quoting Hinton v. United States, 979 A.2d 663, 684

(D.C. 2009))). And we do not think the judge’s inartful phrasing—“under the rules

. . . I’ve got no choice but to remove him” 10—meant that she failed to appreciate that

she had discretion in the matter. The trial judge was clear enough that she

This appears to be a reference to Super. Ct. Crim. R. 24(c)(1) (“The court may . . . replace any jurors who are unable to perform or who are disqualified from performing their duties.”) (emphasis added); see also Super. Ct. Crim. R. 23(b)(3) (“After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict . . . if, due to extraordinary circumstances, the court finds it necessary to excuse a juror for just cause.”); cf. Abney v. United States, 273 A.3d 852, 860 (D.C. 2022) (declining to “express a view about the precise nature of the difference, if any, between” the standards in Rule 24(c) and Rule 23(b)).

understood, in her words, that she could not dismiss Juror 15 because he has “an

opinion that’s different from his colleagues.”

We need not dwell on that first point further because, while we find the trial

judge proceeded with “caution, tact, and respect for the prerogatives of the jury,”

Shotikare, 779 A.2d at 345, we agree with Jordan on his second point—that Juror 15

could not properly be dismissed in any event. That is to say, there was a reasonable

possibility that the other jurors’ complaints about him arose from his views on the

merits, as did his own stated unwillingness to participate in deliberations further.

Notably, this case does not present either of the two scenarios discussed

above, in which a deliberating juror might be properly dismissed: (1) there was no

extrinsic circumstance unrelated to the substance of deliberations that animated his

dismissal; and (2) there was no evidence that Juror 15 had a closed mind or refused

to discuss the case at the outset of deliberations. So that raises the question of

whether (3) there are some facts in this case that could firmly convince us that

Juror 15’s ouster had nothing to do with his views on the merits of the case. We

address those three points in turn.

First, there was no extrinsic circumstance, like the illness in Pitt or the threats

in Shotikare, that animated Juror 15’s dismissal. The only thing even remotely along

those lines was the reference in Juror 13’s note to Juror 15’s “emotional duress”—

appearing to mean “distress”—after learning the jury’s verdict must be unanimous.

See United States v. Laffitte, 121 F.4th 472, 490 (4th Cir. 2024) (“The removal of a

juror whose emotions render her incapacitated may be an adequate exercise of the

district court’s discretion.”). Juror 15 did not report any such emotional distress

himself, however, and the trial court did not dismiss him on account of any perceived

distress. In any event, Juror 13 went on to describe the source of Juror 15’s distress

as the “perceived burden of a[] unanimous decision,” which can reasonably be

interpreted as referencing Juror 15’s unwillingness to go along with a guilty verdict.

See id. (“But such emotional distress only justifies removal if it bears no causal link

to the juror’s holdout status.”). And although financial hardship can be a valid basis

to dismiss a juror, see Hinton, 979 A.2d at 680, the judge discredited Juror 15’s claim

to be experiencing financial hardship and refused to dismiss him for that reason.

Second, there was no evidence or report of Juror 15 refusing to deliberate from

the outset of deliberations; the first report of any disengagement did not come until

the sixth day of deliberations. It was only at that point that Juror 28 complained about

Juror 15’s “clear lack of willingness to participate in juror responsibilities,” and

Juror 13 reported his “averseness to participating in the process due to emotional

duress [and] perceived burden of a[] unanimous decision.” There was no indication

that Juror 15 had refused to participate in the week of deliberations preceding these

reports—aside from a report that he was occasionally “playing on [his] phone”—

and thus nothing to cast doubt on Juror 15’s account that he had been “an active

participant in the deliberations” up until his fellow jurors’ complaints. Cf. (Thalia)

Brown, 818 A.2d at 187 (complaints from the outset of deliberations); Israel, 109

A.3d at 608-10 (same).

Third, because neither of those two scenarios existed here, we must turn to the

rest of the record to discern whether there is some reasonable possibility that the

complaints with Juror 15, and thus his ultimate dismissal, stemmed from his views

about the case. This standard is similar to the beyond a reasonable doubt standard—

we must be “firmly convinced” that the impetus for Juror 15’s dismissal was

unrelated to his position on the merits of the case. See Symington, 195 F.3d at 1087

n.5 (analogizing the inquiry to “proof beyond a reasonable doubt”); Litwin, 972 F.3d

at 1170 (“[T]he available evidence must be ‘sufficient to leave one firmly convinced

that the impetus for a juror’s dismissal is unrelated to his or her position on the

merits.’” (quoting Christensen, 828 F.3d at 807)); Kemp, 500 F.3d at 304 (“[T]he

standard is by no means lax: it corresponds with the burden for establishing guilt in

a criminal trial.”); see also United States v. (Corrine) Brown, 996 F.3d 1171, 1184

(11th Cir. 2021) (describing the analogous “substantial possibility” standard as

“basically a ‘beyond a reasonable doubt’ standard” (quoting Abbell, 271 F.3d at

1302)).

A close analysis of the record, which includes several hints that Juror 15 was

quite possibly singled out because he would not go along with an otherwise

unanimous guilty verdict, makes it evident that there was a reasonable possibility

that Juror 15’s dismissal stemmed from his views on the case.

The most telling evidence of that was Juror 15’s response to the trial judge’s

question about whether he could continue deliberating on day six. The government

understandably stresses his first response—“I’m going to say no”—but far more

revealing is his explanation: “I get my own little idea that I hold onto and I think I’m

going to hold onto it.” (emphasis added). We struggle to see how this could be

interpreted as anything other than Juror 15 indicating that he had reached a decision

at odds with his fellow jurors’ views and did not think further deliberations would

be fruitful. The government remarks that Jordan “did not request further questioning

to clarify” what Juror 15 meant by that, but no further questioning was required or

even appropriate to understand the import of that statement. Juror 15 explained to

the trial court that it would be “hard” to say more without delving into what he and

his “fellow jurors are talking about,” at which point the trial court rightly cut him off

because it was clear that further inquiry would intrude into the substance of jury

deliberations. This statement alone seems to raise a strong possibility that the fellow

jurors’ complaints about Juror 15 stemmed from his views on the merits. 11

Several more subtle clues further support the reasonable possibility that it was

Juror 15’s views on the merits of the case that led to his fellow jurors’ complaints

about him. For one, the juror note on day five asking if the jury could consider the

manslaughter charge suggested that the jury did not think it was futile to discuss that

lesser charge—i.e., the jurors did not appear to view Juror 15 as broadly recalcitrant

in his duties—only that they appeared to be at an impasse on the greater seconddegree murder charge. Another clue comes from Juror 13’s note on the sixth day, in

which she reported that Juror 15 was “not comfortable making judgements against

others.” (emphasis added). Juror 13’s note, both on its face and especially given that

background of the note the previous day asking if jurors could move on to

considering the manslaughter charge, pretty clearly suggests that Juror 15 was a

holdout for acquittal and that at least Juror 13 had grown tired of it.

That possibility, which was palpable before Juror 15’s dismissal, was ultimately further evidenced by the jury’s prompt return of unanimous guilty verdicts once Juror 15 was removed. Cf. Israel, 109 A.3d at 614 (highlighting as support for its conclusion that a juror’s removal did not stem from any disagreement on the merits the fact that, “following the replacement of [the juror], deliberations continued for a further three days before the jury reached its verdicts, suggesting that there remained much room for discussion at the time [the juror] was removed”).

In responding to Juror 13’s note, the trial court somewhat more neutrally

asked whether Juror 15 had “any issue passing judgment”—dropping the “against”

from Juror 13’s note—and Juror 15 responded that he did. But there is ambiguity in

that question and answer. We do not understand Juror 15’s response to clearly mean

that he could not reach any decision. 12 The judge did not ask him that. Having an

issue “passing judgment” instead could just as readily be understood as Juror 15

saying that he had an issue with casting a guilty vote, perhaps because he did not

think the government proved Jordan’s guilt beyond a reasonable doubt. After all, in

ordinary usage, to “pass judgment” on another usually means to condemn or be

critical of them in some way. See Collins English Dictionary,

www.collinsdictionary.com/us/dictionary/english/to-pass-judgment;

https://perma.cc/YC6F-3A7P (last visited July 7, 2026) (noting that “to pass

Even if we understood his response that way, recall that the trial court had opined that Juror 15 had already engaged in a “total ruse” to try and get himself excused from the jury on the fifth day of deliberations—inventing a financial hardship—at around the same time the jury sent another note suggesting they had reached an impasse on the lead charge. That background makes it difficult to discount the possibility that, now on the sixth day of deliberations, Juror 15 was engaged in a similar ruse in an effort to get himself removed from the jury, which would likewise not justify dismissing him. Such a ruse might, of course, stem from a juror’s protracted status as a holdout and a desire to be put out of their misery. See generally (Warren) Brown, 823 F.2d at 594 (examining whether a juror’s selfreported inability “to discharge [his] duties as a member of this jury” resulted from his status as a holdout juror). Notably, in Litwin, the dismissed juror had likewise asked to be removed from the jury due to financial distress prior to her ultimate improper ouster. Litwin, 972 F.3d at 1160.

judgment” applies “especially if you are making a criticism”). That’s why the

colloquialism, “Don’t judge me,” would be a fitting response to a criticism, but an

odd response to a compliment.

And beyond the particular clues in this record, we reiterate that the trial court

must be especially mindful that a juror who disengages only after several days of

deliberations may be doing so because of some disagreement on the merits of the

case. That is simply the most likely culprit for that behavior, and the serious

impediments to a trial court investigating the matter, owing to the secrecy of jury

deliberations, make it exceedingly difficult for the court to firmly discount that

reasonable possibility.

* * *

We recognize that the trial judge in this case was faced with a difficult

dilemma—torn between her conflicting responsibility to investigate potential juror

recalcitrance, her obligation to respect the secrecy of jury deliberations, and her

paramount duty not to intrude upon Jordan’s right to a unanimous jury verdict. But

our cases are clear that, when placed in that difficult spot, first and foremost a trial

judge must make sure that she is not removing a juror who has become an issue only

because of their views about the merits of the case. When the judge cannot discount

that possibility with firm conviction after the limited inquiry they are permitted to

make under Shotikare, then further deliberations or a mistrial are the only available

options. See 779 A.2d at 345. In this instance, we conclude that it is reasonably

possible that Juror 15’s dismissal stemmed from his dissenting views about the

merits of the government’s case. The trial judge thus erred by dismissing him.

It is not clear to us whether such an error could ever be harmless. See generally

Litwin, 972 F.3d at 1178 (considering without resolving whether such errors are

“structural,” and observing that, after directing supplemental briefing on the topic,

“[n]o party has identified a case in which a court has delved into the question whether

the improper dismissal of a juror during deliberations is structural error or subject to

harmless error review”). In any event, the government does not contend that it was

harmless in this case, and we think it was plainly harmful given the reasonable

likelihood that Juror 15 was a holdout for acquittal. Jordan is thus entitled to a new

trial. 13

Jordan also argues that the trial court erred in admitting certain evidence at

his trial. Because we reverse and remand on the juror dismissal issue, and these evidentiary claims are idiosyncratic enough that they seem unlikely to arise on retrial in the same posture, we do not resolve them. See Abney, 273 A.3d at 870 (declining to address evidentiary errors where “it was unclear whether, and if so how, [the] issue[s] would arise on remand”) (citing In re J.W., 258 A.3d 195, 208 (D.C. 2021)).

III. Conclusion

For the foregoing reasons, we reverse Jordan’s convictions and remand for a

new trial.

So ordered.

Jordan v. United States

Authorities cited

Opinion · public domain