The opinion of the court was delivered by: SAROKIN
The trial of this matter lasted approximately five months. The complex, 46-count indictment, charged defendants with conspiracy to violate the RICO statute, tax fraud, mail fraud, and wire fraud. Throughout the trial, and despite the unanticipated length of the proceedings, the jury listened attentively to witnesses and displayed unflagging interest in the proceedings. On March 22, 1982, the jury began its deliberations. Two days later, the court received a message from the Marshals that one of the jurors, Mrs. Steidl, was upset. This message was communicated to counsel by the court:
Gentlemen, as I informed you off the record I have received a message from the Marshals that Mrs. Steidl is very upset. She had been crying, she claims that she has never been away from her husband before, and the general indication that I have received is that she has some doubts as to her ability to continue to serve and to participate in the deliberations.
Under the circumstances it is my suggestion that I meet with her informally, off the record, if I have your consent to do that, first of all to find out what the problem is, report back to you as to what it is that she tells me and then if necessary we will put something on the record, if you think that is appropriate, but my feeling is that I will do much better with her if I can discuss the matter with her without a Court Reporter being present and see what the problem is, but I only will do that if you all consent.
If you want a Court Reporter there I will do that as well.
My suggestion is we start informally before we put ourselves in the position from where there is no retreat.
All counsel agreed that the court should informally interview Mrs. Steidl. A message requesting the interview was then sent to the jury with instructions that further deliberations were to cease until notification to resume was given by the court.
The court's conversation with Mrs. Steidl was held in chambers and lasted for only a few minutes. The substance of the conversation was immediately reported to counsel:
THE COURT: Gentlemen, here is what I gleaned from my conversation with Mrs. Steidl:
First of all, I want you to know that when I began talking to her I instructed explicitly to her that she was not to reveal to me anything that had taken place during the deliberations. She indicated to me that the first night she was very upset because she was away from her husband.
Last night she indicated that in addition she was hysterical because of the pressure of the deliberations. Apparently the foreperson had insisted that the jurors support their views and indicated that they should do so before going to dinner last night.
Apparently that direction upset her very much. She said that that pressure is making her sick and she does not think that she can continue to serve as a juror.
After the court related the details of its discussion with Mrs. Steidl to counsel, there was argument over what should be done next. There were suggestions to interview the foreman, to reinstruct the jurors that each of them must vote their own conscience, to allow Mrs. Steidl to meet with her husband, and to interview Mrs. Steidl again to see whether the proposed meeting with her husband would ameliorate the problems which she was having. Defense counsel urged that the court's first obligation was to have another conversation with Mrs. Steidl:
MR. HAYDEN: I submit that you need at the very least another meeting with Mrs. Steidl.
MR. BAIME: And the foreperson.
MR. HAYDEN: Call her down, explain to her your rationale as to why you are not going to excuse her, explain to her if she has to see her husband, if it were important enough-I don't think giving her the-
THE COURT: I'll do it but I don't want to do it formally.
MR. HAYDEN: Doesn't have to be on the record.
MR. FORD: I can't urge more strongly it be done informally.
THE COURT: Gentlemen, I had a second conversation with Mrs. Steidl. The situation has deteriorated rather than improved.
I told her that we would make arrangements to bring her husband down if she wanted, that I would bring the foreperson in and have a chat with him as to his functions and I read to her the portion of the charge which I said I would consider reading to the jury as a whole and to the foreman, and she said to me that she does not wish to continue under any circumstances.
An attorney for the defense then asked the court for time to caucus with co-counsel. The court, granting the request, stated: "I would suggest, gentlemen, there are three choices: One is to go with a jury of eleven, one is to make use of one of the four alternates who are here, and the third I do not wish to speak aloud."
After counsel met, they jointly proposed that the court should excuse Mrs. Steidl and the foreman and substitute two of the alternate jurors. Alternatively, they asked for a 24-hour adjournment to determine whether their clients were financially able to move for a mistrial. Argument ensued, with the prosecution vigorously opposing a dismissal of the foreman:
MR. PLAISTED: No factual record to justifying going into the jury, plucking out Number 1 (the foreman) and say you are dismissed, no basis for it.
We object. It is inappropriate, no precedent for it.
With respect to Juror Number 9 (Mrs. Steidl), there are in essence two choices, one to tell her to go back and deliberate, or two, substitute another juror in unless defense are willing to have deliberations continue with eleven jurors.
Counsel for one of the defendants responded to the government's argument:
MR. MC ALEVY: I couldn't disagree more with the government.
I think certainly if there is the slightest hint of taint on that jury it should be ferreted out right now, and I don't think there's any question about the fact, just from what your Honor has told us, Juror Number 9, the accusation she made about Number 1, I think it is something that should be inquired into not only by the court but by counsel within that limited area but we should have the limited right because if there is a taint on this jury there would be absolutely no choice except for a mistrial.
Other counsel also urged that a hearing should be held to determine whether the pressure Mrs. Steidl was feeling was due to improper conduct on the part of the foreman. Counsel also advised the court that their willingness to excuse Mrs. Steidl and substitute an alternate was conditioned upon excusing the foreman as well. Counsel were then requested by the court to decide whether they would want Mrs. Steidl excused should the request to dismiss the foreman be denied:
THE COURT: Gentlemen, I think I have fairly conveyed to you Mrs. Steidl's position and her indication based upon two conversations with her that she does not think that she can continue, and therefore, I agree with Mr. Plaisted that I would like to know whether under those circumstances from each defendant, whether they want Mrs. Steidl excused, if they do want her excused I would like to know whether or not they want an alternate substituted, or whether they move for a mistrial.
As of this moment I am rejecting the condition that Mr. Fitzgibbon also be excused, but that does not mean that I won't deal with the problem, if there is one, once we decide on Mrs. Steidl.
I will not accept that as a condition for excusing Mrs. Steidl. I think we have to deal with her separately and resolve it.
Because counsel were unable to agree upon how to proceed, the court suggested that they meet informally in chambers:
THE COURT: I will suggest that we will be more productive if we meet in my chambers. Let's see if we can't save the five months, the agony, expense to everyone.
The meeting was held but there was still no agreement over how to proceed. However, it was evident to the court that defendants would not consent to a jury of eleven or the substitution of an alternate. Therefore, the retention of Mrs. Steidl as a juror was the only realistic alternative absent a mistrial.
The court, understanding that it had the continuing authorization of counsel, decided to make one final effort to determine if Mrs. Steidl would and could continue to serve. After lunch, the court reported as follows:
THE COURT: Please be seated. Gentlemen, I had a further conversation with Mrs. Steidl.
I indicated to her that it might be necessary for her to continue to serve as a juror and she indicated to me that she would be willing to do so.
I also indicated to her that I would bring the jury down and give them some further instructions. Therefore, I think I have a very simple alternative to give to all counsel and eliminate the numerous variables that we have had so far. Counsel, and I guess this is primarily directed at counsel for defendants, but I will certainly hear from the Government as well, should indicate to me whether they are willing at this stage to consent to substitute an alternate for Mrs. Steidl knowing that it is my present inclination that if they are not willing then I am going to ask her to continue to serve. So I think that simplifies the choice for counsel.
No objection was made to this meeting. In fact, the court was complimented for its decision to ask Mrs. Steidl to continue serving as a juror:
MR. HAYDEN: The court asked us to use some ingenuity and it looks like the ingenuity came from the bench.
The court then read to counsel the instruction that it proposed giving to the jury and granted defendants' request for time to caucus to discuss the new development.
After a brief recess, court resumed. The court asked Mr. Hayden, the attorney for defendant Powers, whether agreement had been reached upon how to proceed. Mr. Hayden revealed that counsel were divided:
MR. HAYDEN: There is not an entire consensus. I think there are two views which I will articulate for at least five or six of the counsel.
Your Honor, on the basis of what the court indicated its conversation was with Mrs. Steidl and the fact that she now feels that she could be a fair and impartial juror, she would not be intimidated, we would have-I will withdraw my motion to dismiss her as a juror subject to the Court giving a strong charge to the jury as to the right of each juror to listen and discuss with each other but to vote their conscience, and more importantly, subject to the Court giving a strong charge, in effect telling the foreman that he is not in any preferred status to anybody else, he must listen and have some respect for the dignity of each juror, he has no right to brow-beat, intimidate, harass anybody else, and among other things, that he cannot require people to marshal the evidence, in effect give a summation, because again the constitutional right to trial by jury is a right to a jury from a cross-section of the community, which means some people are more articulate than others, some people-
Two other defense attorneys, Mr. Arseneault and Mr. Baime, agreed with Mr. Hayden that Mrs. Steidl, who had been sequestered from the remainder of the jury since the court's first conversation with her, should continue to serve as a juror and that a strong instruction should be given to the jury before it resumed deliberations. Mr. Flood, attorney for defendant Genovese, took another position:
MR. FLOOD: I have some problem with her remaining as a juror but this in no way means I would consent to there being an alternate juror.
Mr. Silber, attorney for defendant D'Agostino, took yet another position:
MR. SILBER: Two positions to put on the record:
First, I would move for a mistrial at this time based on two things: first, I do not believe the Court has the power to substitute an alternate without consent and I would not consent, and secondly, based on the position Mrs. Steidl took this morning, the conversations which were related to us by the Court, and I want to make it clear that I in no way object to the procedure employed, I adopt and support the procedure employed, that the fact that she has been isolated, she has not been in the jury room, and at two o'clock in the jury room we had eleven jurors all together who were instructed not to deliberate, but this raises a question in my mind as to whether all those circumstances being attendant I have sufficient concerns to move for a mistrial at this time.
Mr. Silber later stated that if the court were unwilling to grant his motion for a mistrial, then he would rather have Mrs. Steidl continue as a juror than have her replaced by an alternate. Mr. Flood and Mr. Ford concurred with this position.
Mr. McAlevy, attorney for defendant Scarafile, differed with the positions taken by other defense counsel:
MR. MC ALEVY: I wish to have a voir dire of this woman and unless I have that, unless I have it I feel that's a basic right that I have under the circumstances and unless I have that, sir, I certainly will ask for a mistrial, unless I have that right-
Mr. Anolik, attorney for defendant Musto, agreed that a voir dire examination should be conducted of Mrs. Steidl but he did not state that he would move for a mistrial in the absence of such an interview.
The court, confronted with the inconsistent positions of the defense, requested the government to state its position:
MR. PLAISTED: Initially this morning before we did research over the lunch hour we had been opposed to the removal of Mrs. Steidl. We opposed meetings between the foreman and your Honor and further meetings between your Honor and Mrs. Steidl.
Our concern stems from a recognition of the principles that seem to go through the cases, that is, there shouldn't be any interference in the deliberative process of the jury, the jury should control their own deliberations.
Case law is fairly clear about that. It is fairly clear about inquiries, it is clear that one removes a juror only because of outside influence or because a juror can no longer continue to deliberate because of health or other such reasons that prevent the juror from continuing to deliberate.
Over the lunch hour we were looking at cases, one of the cases was, we looked at, was the Gypsum case which, too, reflected an incident after a long trial where the foreman had requested a meeting with the Court and the Court had the consent of all counsel and said, all right, I'll meet with the foreman, and the Court discussed the case with the foreman briefly, and then later the Supreme Court was concerned about that very meeting, even though it happened with the consent of all counsel.
Under the circumstances-and reversed the case, as I understand it.
Under the circumstances that we are now presented where the defense has asked your Honor to meet with Mrs. Steidl but after having done that, after having pushed your Honor into that position now some of defense counsel are taking the position Mrs. Steidl should not be reinserted, she should be stricken, we are in the position where the Government in order-we have no choice but if some counsel object to her being placed back in the jury box we must also object.
What counsel have stood before your Honor and said, and all of them did, we would accept an alternate being placed in the box, an alternate so long as two alternates are placed in the box, so long as the foreman is removed, and there is no cause for removing the foreman, there is no cause for an inquiry, that's improper.
What counsel have said for tactical reasons, we will accept inserting a juror but absent those tactical concessions we will not accept inserting a juror, that's not fair.
The Government is getting whip-sawed by the different tactical decisions of counsel. They have now, by trying to induce these inquiries and asking for more and more inquiries into the deliberative process, have put the Court in an untenable position, have put the Government in an untenable position.
The Third Circuit has specifically allowed, and we found the case over the lunch hour as well, Mr. Friedman did, allowed with the consent of counsel the insertion of an alternate juror.
Having heard the positions of all counsel, the court ruled:
Gentlemen, under these circumstances if any of the defendants are of the view that Mrs. Steidl should be removed there is a way to accomplish that without in any way prejudicing the rights of any of the defendants, namely, by making use of the four alternates who are still here, who have been under my instructions and have continued to be under my instructions not to discuss the case with anyone, not to read anything in the newspapers or watch anything on radio or television.
So the defendants have the opportunity if they want to avail themselves of it (by) making use of those alternates.
They have apparently elected not to do that.
I am satisfied based upon my conversation with Mrs. Steidl, although she is upset, that that upset is such that she still feels that she can return to the jury and act as a fair and impartial juror.
I think I owe to all counsel in this case to conduct a voir dire just as to that.
I have no intention of asking her what has been going on in the jury deliberations, but I think it is appropriate for me to bring her out here and ask her in your presence whether based upon all of the circumstances she feels she can resume her role as a juror and act as a fair and impartial juror.
MR. ANOLIK: Yes, not out here.
MR. HAYDEN: How about in the Court's chambers on the record?
The court granted Mr. Hayden's request and conducted the following voir dire examination in chambers:
THE COURT: Now, Mrs. Steidl, you and I have had some conversations today; is that correct?
THE COURT: Now, I have asked counsel to come and meet with you and with me in chambers because we are interested in knowing whether you can continue to operate and function as a juror in this case.
One question I want you to answer is do you feel despite anything that has happened so far that you can continue to be an effective and fair and impartial juror in this case and decide the case in accordance with my instructions?
THE COURT: Gentlemen, let's go back into the courtroom and we will bring the jury and we will get back to our work.
MRS. STEIDL: I most humbly apologize.
THE COURT: That's all right. It is an emotional experience for everybody.
THE COURT: Ladies and gentlemen, I apologize for keeping you waiting but during the course of the trial I know you have become used to that.
I am informed that one or more of the jurors have expressed some displeasure with the conduct of the deliberations and believe that undue or unfair pressure
may have been brought to bear upon you. I must say to all of you that in a case of this length, size and complexity, one would expect that there would be lively and even heated discussion over the evidence and the issues presented.
I wish to remind you and emphasize that each juror is free to express or not to express him or herself on any of the issues that were presented. That is the very nature of the process.
This is a serious matter and serious discussion will undoubtedly affect each and every one of you, possibly even emotionally. That's to be expected. The foreperson whom you have chosen acts as the chair of your deliberations but as I am sure you all know, I'm sure that he knows his views are equal to each of yours and are entitled to no greater weight.
As you undoubtedly know by now I met with Mrs. Steidl this morning and the only instruction that I gave to her is the previous instruction which I gave each of you which I will now repeat, since it seems to bear on whatever the present situation is.
With respect to your verdict, the verdict must represent the considered judgment of each juror. In order to return a verdict in this matter it is ...