Criminal Procedure — right to 12-person jury

Listen to this article

United States Court of Appeals

Criminal

Criminal Procedure — right to 12-person jury

Where the evidence is inconclusive whether the jury engaged in deliberations on one day with only 11 jurors, the district court’s denial of a new trial was reasonable.

“The most that can be said about this evidence is that it is inconclusive. ‘Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’ McGraw, 571 F.3d at 629 (quotation marks omitted). In this situation, it was entirely reasonable for the trial judge to give decisive weight to his regular courtroom practice. The jurors’ spotty recollections of the decade-old events of the trial—even assuming their admissibility—are too unreliable and hardly sufficient to displace the reasonable inference arising from the court’s normal practice. The absence of a formal record is troubling, but not enough to convince us that the judge’s ‘not proven’ finding was clearly erroneous.”

Affirmed.

09-2308 Webster v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Sykes, J.