California Supreme Court reverses death penalty conviction because a juror was erroneously discharged

People v. McGhee (Cal., Apr. 3, 2025, No. S169750) 2025 WL 1000847, at *1

Summary: A jury convicted McGhee of three counts of first degree murder and four counts of attempted murder. (Pen. Code, §§ 187, 664, subd. (a); The jury found true the special circumstances that he committed multiple murders (§ 190.2, subd. (a)(3)) and that he committed two of the three murders while participating in, and for the benefit of, a criminal street gang (§ 190.2, subd. (a)(22)). The first jury deadlocked as to penalty. On retrial of the penalty phase, a different jury returned a verdict of death.

The California Supreme Court reversed McGhee’s conviction and sentence because of the erroneous discharge of a juror during guilt phase deliberations,

Jury Deliberations

At the end of that third day of deliberations, the court received the following note from two jurors: “We, Jurors Number Nine and 11, feel that the majority of the jury feels as though one juror, Number Five, has been swayed and is not capable of making a fair decision in any of the counts against McGhee. Juror Number Five is using speculation as facts and has no rational explanation as to why he feels the way he does other than saying every prosecution witness was coached and lying. Yet the defense witnesses are all telling the truth and believable.”

The jury continued its deliberations the following morning. Meanwhile, the court read the note to counsel for both sides and, over defense objection, decided that it would make an inquiry into the accusations against Juror No. 5. At that point, the court directed the jury to stop deliberating.

Th court questioned the jurors and Juror No. 11 a testified that Juror No. 5 made statements suggesting bias against the police or the prosecution. For example, Juror No. 5 said that he “doesn’t like the cops in this case” and that he does not trust the prosecution witnesses because they have been coached by the police and did not come forward to police shortly after the incidents.

After having questioned all members of the jury except Juror No. 5, the court informed the attorneys that it was leaning toward dismissing him. It then called Juror No. 5 into the courtroom for questioning.

Juror No. 5 denied telling the other jurors that he believed all the prosecution’s witnesses had been coached or that he would never believe someone who had a felony conviction. Juror No. 5 also denied he was prejudiced against the police and in favor of gangs. He thought he was deliberating fairly and was supporting his positions. He also commented that he felt a “wave” from one or two jurors that was carrying over to others, “like they’re trying to gang up on me” and “not really seeing me being logical.”

The court removed Juror No. 5 in the following ruling:

“My job as a judge is to make sure that we have jurors that will give both sides a fair trial. And I am of the opinion that Juror Number Five is not giving and will not give a fair trial to the prosecution. And I am going to remove him for misconduct.

Discussion

Under section 1089, a trial court may discharge a juror any time during trial, including during jury deliberations, if the court concludes the juror in question is “unable to perform his or her duty.” A juror who refuses to deliberate or who is biased against law enforcement is unable to perform his or her duty within the meaning of section 1089 and may be removed.

A court has “broad discretion to remove a juror for cause” under section 1089. (But “[g]reat caution is required in deciding to excuse a sitting juror. A court’s intervention may upset the delicate balance of deliberations. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71. To uphold the discharge of a juror a reviewing court “must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied,” considering that evidence and the court’s reasons for discharging the juror in light of the entire record.

Failure to deliberate

As our cases explain, a “failure to deliberate” means a juror is refusing to deliberate. To the extent the court’s discharge of Juror No. 5 for failure to deliberate meant that Juror No. 5 was refusing to deliberate, that conclusion is not manifestly supported by the record.

“A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process…. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.” (Cleveland, supra, 25 Cal.4th at p. 485.)

Bias against the police or the prosecution

The trial court stated in its ruling that Juror No. 5 was not “fairly deliberat[ing]” and “will not give a fair trial to the prosecution.” “[W]hen I look at the totality of the [jurors’ testimony],” the court said, “what we heard was much more than faulty logic or analysis. We had what the court perceives to be a strong anti-prosecution bias.” Based on the trial court’s ruling as a whole, this appears to be the crux of the court’s concern.

The trial court concluded that Juror No. 5 had “a strong anti-prosecution bias” without carefully examining whether Juror No. 5’s belief that the prosecution witnesses were lying was a plausible inference from the evidence presented. In fact, Juror No. 5’s views largely aligned with the defense evidence in this case.

In concluding that Juror No. 5 was biased, the trial court credited “discussion from the jurors … about how he is speculating on the evidence and that the speculation is governing his view of the evidence.” Juror No. 5’s views were generally grounded in the evidence and reflected inferences that could reasonably be drawn from the evidence in light of one’s life experience.

The complaints against Juror No. 5 show that he was rejecting, not disregarding, the prosecution’s evidence, and the record as a whole indicates that his rejection was based on the evidence adduced at trial. The record died not show to a demonstrable reality that Juror No. 5 exhibited an improper bias against law enforcement or the prosecution warranting his removal. The trial court erred in removing Juror No. 5 from the jury during guilt phase deliberations and that the error requires reversal of the judgment.

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