Published on: Thursday, September 12, 2024
New York man is prosecuted for sending death threats to congresspersons and Fox News hosts. A jury of 11 convicts. Split Second Circuit: That's OK. A 12-person jury isn't a constitutional right. And no prejudice suffered: The threats were clearly real (e.g., "Laura Ingraham, I am going to personally kill you"), so the error was harmless. Dissent: Not OK. Twelve jurors are "fundamental" to criminal trials, so this is a structural error. A 12th could've tipped the balance or hung the jury, a real possibility given the jury spent days deliberating, couldn't reach a consensus on one charge, and sent out notes like, "Do we have to convict even if we think he is mentally ill?"
The case is United States v. Johnson, 22-1289 (2d Cir. Sept. 6, 2024).