The Counsellor's Corner


The role of a judge is not an easy one, and it is absolutely critical that the judge maintain his objectivity during the trial of a criminal case, or any case for that matter, and not permit the result the court might prefer to affect the court’s rulings.

Whether or not this took place is the question in Riverside pertaining to a recent murder trial. 

In the middle of March, the penalty phase of the jury trial of Lester Wilson had begun.  Mr. Wilson had already been convicted of the torture murder of a former housemate, and it was now up to the jury to decide whether his punishment was to be life in prison without the possibility of parole, or the death penalty.  The judge in this case, Judge Sherman, removed and replaced first one of the 12 jurors and then another, and then and only then did the jury decide that death was the appropriate sentence.  In this case, the defendant was black and only one of the jurors was black.  Of course, it was that juror, John Holland, who was the first juror to be removed.  Although Juror Holland was apparently competent enough to convict Mr. Wilson of first-degree murder with special circumstances, the judge decided that he was not competent in the penalty phase deliberations. After six hours of penalty-phase deliberations, the jury was deadlocked 11 to 1 in favor of the death penalty when one of the jurors sent Judge Sherman a note indicating that it appeared as if Juror Holland’s race was becoming an issue.  Juror Holland indicated that he brought his perspective as a black man into the jury’s deliberation with respect to their discussion of Mr. Wilson’s troubled background.  Some of the jurors stated at a hearing that Mr. Holland told them that only he as a black man could fully understand the testimony regarding Mr. Wilson’s abusive childhood, however eight of the other eleven jurors, when questioned about Mr. Holland indicated that he was not exhibiting racial bias.  Each juror acknowledged that Mr. Holland was capable of deliberating and reaching a decision based on the evidence.  Unfortunately, Judge Sherman disagreed, indicating that she did not think he could continue on the jury and, sure enough, Mr. Holland was removed from the deliberations. 

            Mr. Holland was then replaced by the first alternate juror who was white.  The next day, Judge Sherman received a noted from the foreperson indicating that this new juror was “unable to vote for the death penalty, and we need another alternate to take his place.”  Nothing like having the jury go through alternates until they find one who will agree with the other eleven.  This first alternate had filled out a jury questionnaire in which he indicated that if appropriate he could impose the death penalty.  When questioned regarding this case, he told Judge Sherman that he did not believe this was an appropriate case for the death penalty.  Judge Sherman decided to replace him too, and sure enough, with the second alternate, the jury reached its verdict of death in a little more than an hour.  The defense attorney claims that the judge excluded qualified jurors and replaced them with, eventually, a juror who would go along with the other eleven.

Penal Code Section 1089 allows judges to remove jurors if “good cause” is shown that the juror is “unable to perform his duty.”  There is a big difference between being unable to perform your duty and being what is often referred to as a “hold-out juror.”  The importance of a “hold-out” juror was made clear to me approximately 15 years ago when a friend of mine tried a murder trial, and the jury hung 11 to 1 in favor of guilty.  The case was retried, and at the retrial the jury voted 12 to nothing for not guilty; the defendant was acquitted of the charges and freed.  If this had been in Judge Sherman’s court, I have a feeling that the first jury would not have ended up hung, and a second trial would never have taken place, and this man’s life would have been changed forever and perhaps taken from him.


In my experience trying criminal cases, judges tell jurors that they need to bring their common sense with them into the jury room.  In this case, the African-American juror appears to have done so, and then the first alternate juror appears to have done so as well.

In order for the jury system to work, jurors have to have some freedom.  It is clearly appropriate to remove a juror if he indicates a lack of willingness to discuss the issues and/or deliberate.  If, as in this case, jurors deliberate and don’t reach a verdict, that is okay.  There is a jury instruction in criminal cases which tells each juror that it is his obligation to vote his conscience, and that each side is entitled to the individual opinion of each juror.  The jury is told to reach a verdict “if it can do so.”  It is important that jurors know that a hung jury, with each juror voting his or her conscience, is what the system wants as opposed to a jury where members of the jury compromise their beliefs.  Jurors need to know that if they want to disagree with the majority, that is their right and, in fact, is very often appropriate.  In this matter, I would not be at all surprised if the death penalty sentence is reversed on appeal.  It appears to me that would be the appropriate ruling.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth.  Mr. Unger writes a bimonthly column on legal and psychological issues.