REMOVING MEMBER DURING TRIAL

In United States v. Bolden, 596 F.3d 976 (8th Cir. 2010) the civilian defendant's girlfriend spoke to two jurors during a recess in the trial. Both jurors were questioned about their conversations. The first juror said she spoke to the girlfriend for approximately five minutes about the weather and did not know her relationship to the defendant. The second juror spoke to the girlfriend for more time and discussed more personal matters, including the juror's husband who had recently been in a car accident; the second juror knew she was speaking to the defendant's girlfriend. The district court excused the second juror, based on the Government's argument that the personal information could be "perceived as a threat or as a means to obtain sympathy" for the defendant. The Eighth Circuit upheld the excusal: (1) the district court's decision to remove a juror is reviewed under an abuse of discretion standard, noting the appellate court will uphold the decision if the record shows a "legitimate basis for it"; (2) the district court determined the juror might feel threatened because the defendant's girlfriend know personal information about the juror. Finally, the court noted the Supreme Court has held the "ultimate goal" of jury selection is to seat an impartial jury (citing Georgia v. McCollum, 505 U.S. 42, 57 (1992)). "Under the circumstances, the district court did not abuse its discretion in erring on the side of caution when the juror in question had contact with an interested third party who identity was known to the juror."