No Problem with Juror Being Remote Because Wife Might Have COVID, If Defendant Consents
From yesterday’s Ninth Circuit decision in U.S. v. Knight, by District Judge Robert Lasnik (W.D. Wash.), joined by Judges Sidney Thomas and Mark Bennett:
In July 2019, two stores were robbed in Sparks, Nevada. After a six-day trial, Knight was convicted of the robberies and sentenced to 169 months’ imprisonment followed by five years of supervised release. We consider in this opinion Knight’s argument that the convictions must be vacated because the district court structurally erred by permitting a juror to participate remotely in the first two days of trial….
Knight’s criminal trial began on March 8, 2021, with jury selection. The jury was empaneled that day. The next morning, Juror 10 notified the court that his wife was ill. Given the possibility that Juror 10 could be infected with the COVID-19 virus, the district court conferred with the parties to determine how best to proceed, proposing three options:
One is to allow [Juror 10] to participate in the trial by Zoom. He could listen to the testimony, view the evidence by Zoom, and if by the time the jury begins deliberation he is—his wife is clear, then he can join the deliberation; if not, then I would dismiss him at the time if he could not join the deliberation. That way, I still have two alternates for awhile [sic].
The second option is to dismiss him and have one alternate for the trial, really, before opening even starts.
The third option is to delay trial until [Juror 10] can – is, essentially, permitted to return to normal activities.
The government preferred that Juror 10 be excused from service, citing potential technological problems with remote service. Knight’s counsel recognized that sharing exhibits with a remote juror would require a collaborative solution and that the juror should be admonished to not access the internet, not use his phone, and devote his full attention to the proceedings, but preferred the first option over dismissal or delay. [Knight then expressly consented to having Juror 10 watch via Zoom.—ed.]
At the end of the day, the district court noted for the record that she and her clerk could see Juror 10 on their computer screens and that the clerk and Juror 10 had established a procedure for him to notify the clerk if he were not able to hear or see what was going on in the courtroom….[Later, d]efense counse
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