What happens when a juror in a criminal case with horrific facts says he can't handle the evidence? A recent child pornography case out of Ohio addressed the issue. After being impanelled but before any evidence was presented a juror sent this message to the courtroom deputy :
I'm a juror that was in the courtroom today for Judge Dowd's case. And I just left there and I don't know how I'm going to be able to do this tomorrow. I'll be honest with you. I'm, like, half sick. I guess they're showing pictures or a video tomorrow.
There is just no way I'm going to be able to view these pictures or video. So I really don't know what to do. I just called in, and they put me to your number. You know, there is just no way I can view any of these pictures or video on this case tomorrow.
In this Jan. 7th opinion, a panel of the 6th circuit found the judge's decision to keep the reluctant juror an abuse of discretion. The panel vacated a 14-year sentence for the defendant and ordered a new trial. Writing for the panel, Judge Martha Daughtrey showed some sympathy for the judge's dilemma, but emphasized that fairness trumps expediency:
In his memorandum opinion explaining why he did not excuse Juror 29 from the panel, the district judge rationalized that it was not necessary for the juror to observe the pornographic images because neither party disputed that the images and videos should be classified as child pornography. Therefore, the district court concluded, the jury's primary function in this prosecution was to determine only whether Shepard knowingly accessed those images and videos, an exercise that the court apparently thought would not require viewing the visual evidence. On one level, that decision is understandable. The district judge had conducted a lengthy voir dire and had effectively exhausted the available jury pool. By dismissing Juror 29, the court risked providing an opportunity for other jurors to have themselves excused from service because of the nature of the evidence to be presented.
Nevertheless, the role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court. Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency.
In a National Law Journal piece, Cornell law professor Valerie Hans says that although it's tempting to let jurors self-select out, a jury consisting only of people who aren't offended by child pornography wouldn't reflect a community's value. But in this case, Hans says, the juror's lingering doubts after first being persuaded during voir dire that he could be fair and impartial warranted his removal.