PORTLAND, Ore. (CN) — The federal jury in the trial of the occupiers of the Malheur National Wildlife Refuge will begin deliberations anew on Thursday, after the judge cited "extraordinary circumstances" in dismissing one juror accused of bias.
U.S. District Judge Anna J. Brown considered questioning each of the 12 jury members about the impartiality of juror number 11, after juror number 4 sent her a note warning her that number 11 announced that he was "very biased."
Juror 11 told the court during jury selection that he had worked for the Bureau of Land Management and the U.S. Forest Service. But at the time, he said he was confident that he could serve as a jury member because the job had been 20 years ago.
Neither the government nor the defense moved to dismiss him then.
But according to a note written by juror 4, the first thing juror 11 said when the jury was allowed to discuss the case was that he was "very biased."
Juror 4 waited through three days of deliberations to send his note to the judge.
Matt Schindler, attorney for defendant Ken Medenbach, said after the hearing that the development was highly unusual.
"I have never been in a situation in federal court before where a juror provided a note to a judge calling out another juror for not just an implied bias or unwillingness to deliberate, but a stated bias in favor of one of the victims in the case," Schindler said. "So it's a very interesting dynamic and not one I have confronted before."
A second note sent by another juror at the same time seemed to imply that the jury had reached a verdict for three of the seven defendants accused of conspiracy to keep federal employees from doing their jobs.
"If we are able to agree on a verdict for three of the defendants but are at a standoff for the others, does our decision for the three stand," the note said. "Or does this become a mistrial for all?"
Judge Brown sent a note back to the jury explaining that a partial verdict is permissible. Each defendant should be viewed as a separate case, the judge said. So a verdict or hung jury for one defendant does not affect the outcome for another defendant.
Brown said in court that any attempt to keep juror 11 could result in a mistrial, because she would have to question each juror on whether juror 11 had deliberated fairly so far. And those questions could delve into forbidden territory, since judges are not allowed to question jurors on the merits of a case.
Questions aimed at resolving the issue by keeping juror 11 come with a "great risk that all jurors could ultimately be disqualified," Brown said.
Schindler said removing the juror was the safest bet to avoid a mistrial.
"If you consider how you would ask questions of somebody to deal with that bias without actually discussing with them what was talked about in the jury room or what their deliberations are or what their view of the evidence is, that is problematic," Schindler said. "We have a number of alternate jurors and we are in a position to seat one. So I think that's probably the safest thing in terms of ensuring that whatever result comes out of this trial is a result that we can all live with."
Juror 18, one of six alternates who attended every day of the six-week trial, was en route Wednesday afternoon from her home in central Oregon to the Mark O. Hatfield Courthouse in downtown Portland.
Deliberations were set to start over on Thursday morning.
Standing on the front steps of the courthouse, Ammon Bundy's attorney Marcus Mumford told reporters that even without juror 11 it was possible that the jury could still be tainted.
"That's the concern," Mumford said. "But we have to trust that the system works."
Judge Brown told the 11 remaining jurors to clean up their jury room so that juror 18 wouldn't be swayed by anything that had happened during the first three days of deliberations.
No matter what decisions may have been reached with the earlier configuration of jurors, "all jurors must be open to deliberating anew," Brown said.
And she said she would make clear to the jury that "anew means anew."
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