Get back in here! U.S. Supreme Court rejects Eighth Circuit’s “no recalling a jury” rule.

by Ryan Leemkuil | June 9, 2016

By Ryan Leemkuil

This blog has previously covered the long-running dispute between former Iowa law school dean Carolyn Jones and Teresa Wagner, a former law school employee who claims she was passed over for a job due to political bias. Most recently, we covered the Eighth Circuit’s 2014 ruling that the district court did not have the power to recall the jurors to render a verdict minutes after they had been discharged. Noting the risk of outside influence, the Eighth Circuit thought a bright line rule was best: Once a court discharges the jury and they leave the courtroom, a jury can no longer render a verdict. In today’s world of “instant individualized electronic communication,” the Eighth Circuit explained, a clear rule “offers better guidance than an amorphous rule that turns on whether jurors in fact became available for or were susceptible to outside influences or remained within total control of the court.” Jones, who was on the losing end of that ruling, asked the Supreme Court to review the case, but the Court declined early last year.

Today, however, the Supreme Court addressed the issue in another case and rejected the Eighth Circuit’s bright line rule. In Dietz v. Bouldin, the Court adopted a multi-factor test to determine whether a discharged jury may be recalled to do further work on a case. Those factors include the delay between discharge and recall, whether the jurors interacted with any non-jurors, and the nature of any courtroom reaction to the initial verdict. Rather than impose any “categorical bar” to recalling a jury, the Supreme Court directed district courts to “cautiously” and “carefully” apply these factors to decide whether a jury may be recalled.

Two dissenting justices—Justice Thomas, joined by Justice Kennedy—preferred the Eighth Circuit’s bright line rule. Echoing the Eighth Circuit’s concerns in Wagner, the dissent reasoned that a clear rule was preferable in “today’s world of cellphones, wireless Internet, and 24/7 news coverage,” where jurors may easily come across prejudicial information after discharge. The majority’s various factors, on the other hand, will only produce more litigation: “Is one hour too long? How about two hours or two days? Does a single Internet search by a juror preclude recalling the entire jury?” An occasional unnecessary “redo,” in the dissent’s view, is preferable to repeated litigation trying to answer these questions.

Dietz won’t matter for the Wagner case—the case was ultimately retried and Wagner lost. But litigators should be on notice: A jury’s discharge might just be temporary.

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode. 


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