A federal appellate court has overturned six narcotics convictions because the judge presiding over the Brooklyn trial may have removed a holdout juror in order to prevent a hung jury. During deliberations, the trail judge questioned the juror's mental competence but permitted him to continue until the jury deadlocked 11 to 1 for conviction.
In its Nov. 22 ruling in United States v. Hernandez, the 2nd US Circuit Court of Appeals wrote, "We cannot be confident that Juror No. Four's disagreement with his colleagues was not the cause of his removal." Circuit Judge Ralph Winter wrote the unanimous opinion.
On Nov. 19, 1987, US District Judge John Barrels of the Eastern District of New York dismissed holdout Frank Schwartz on the fourth day of deliberation following a three-week trial. The remaining 11-person jury convicted the defendants a half-hour later. The defendants were charged with participating in a large-scale heroin dealing conspiracy in Brooklyn.
The appellate court also found that the deliberations of the 11 jurors were tainted by statements Bartels made shortly before removing Schwartz, at a time when, the court surmised, Bartels was contemplating a mistrial. "Those remarks praised the eleven lavishly for their efforts to persuade No. Four to vote to convict," Winter wrote.
Bartels, 91, is a senior judge who has been on the federal bench for 29 years.
Under a 1983 amendment to the Federal Rules of Criminal Procedure, a judge can, even over objection, excuse a deliberating juror for "just cause" and permit an 11-person jury to decide the case. Both the rule and case law discourage substitution.
Despite the reversals, the lead defense attorneys on appeal, solos Alan Polak and Leonard Levenson, were disappointed with the court's reasoning. Polak said there was little appellate case law on the 1983 amendment and he had hoped for a decision that would provide guidance on "what it takes to remove a deliberating juror." He said the decision handed down had "little precedential value."
Levenson described the opinion as "one of the worst decisions I've ever seen." The defense maintained that Schwartz was competent and that Bartels discharged him because Schwartz favored acquittal. Bartels refused a defense request to have a psychiatrist evaluate Schwartz. " They don't really address the pressing issue," said Levenson. "What is good cause for removing a juror? This was a perfect case for them to write on that issue."
Schwartz was impaneled after the government exhausted its peremptory challenges. The prosecution first asked Bartels to dismiss him before opening statements. It alleged that, before jury selection, Schwartz had been seen conversing the the girlfriend of defendant Carlos Hernandez. After questioning Schwartz, Bartels denied the request.
During the trial, Bartels again denied a government request to remove Schwartz, based upon alleged "disruptive" conduct, including talking to another juror and kicking his chair.
Within an hour after deliberations began, the jury passed out a note requesting that Schwartz has a prejudice and lacks the rational common sense to deliberate in a logical way," the said. "The individual wants to start a case against the government in a conspiracy charge."
Another note, submitted shortly thereafter, stated that, during an argument, Schwartz had thrown water in a juror's face and twisted the arm of a third juror.
In questioning by Bartels, Schwartz maintained he had taken the actions after other jurors assaulted him. Bartels declined to remove him.
On the second day of deliberations the jury wrote to Bartels: "We the eleven jurors are---pleased to say that we are making progress with (Schwartz)---and we don't want a mistrial." On the same day, Bartels learned that Schwartz had told other jurors that he hadbeen discharged from military service due to mental problems. Thought the government asked Bartels to question Schwartz about it, Bartels declined, saying he would "wait and [see] what I am going to do if there is a hung jury," according to the ruling.
On the fourth day, the jury wrote notes complaining that Schwartz had backed out of an agreement to convict and that "it was unfair to us that we had to work with a 'mentally incompetent person.'"
Bartels then addressed the entire jury, commending them for their efforts to try, try, try again to persuade [Schwartz]" He said that "thousands of dollars are lost on a mistrial" and he expressed his "deep appreciation" for their efforts to prevent one.
When Bartels interviewed Schwartz again. Schwartz said that five years earlier he had been discharged from the Navy for "unsuitability" after a psychiatric examination determined that he had an inability to "fit in". He said he was receiving disability benefits for a "neurosis".
At that point Bartels dismissed Schwartz, citing his military discharge and disability and his "queer" conduct, during deliberations.
Although he sentenced the defendants to terms ranging from four to eight years' imprisonment, Bartels permitted all the defendants to remain free on bail pending appeal.
Assistant US Attorney Gregory O'Connell, the trail prosecutor argued the appeal for the government. He had no comment on the ruling.
Bartels was at the center of another controversy involving a holdout juror two years ago. In November 1986, a juror in a labor extortion prosecution before Bartels forced a mistrial by holding out for acquittal. In January 1987, federal prosecutors told the The New York Times that they were investigating the juror, at Bartels' direction.
In February 1987, after protests from defense lawyers in other cases, the Times reported that Bartels wrote a letter to the juror commending her courage, saying there was "no possible basis for criticism of your conduct" and denying that he had ordered the investigation.