464 U.S. 972 (1983)

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U.S. Supreme Court

MCILWAIN v. U.S. , 464 U.S. 972 (1983)

464 U.S. 972


Alvin C. HINES

82-6780, 82-6997.

Supreme Court of the United States

November 7, 1983

On petitions for writ of certiorari to the District of Columbia Court of Appeals.

The petitions for writs of certiorari are denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from denial of certiorari.


Petitioners, convicted of second-degree burglary while armed, challenge their convictions on the ground that they were denied due process and the right to an impartial jury in violation of the Fifth and Sixth Amendments to the United States Constitution. Their claims stem from the fact that the deliberations of the jury that convicted them were disrupted by the intoxication of the

Page 464 U.S. 972 , 973

foreman of the jury. On the second day of deliberations, Friday, July 23, 1981, the trial judge received a note from members of the jury stating that they "would like to change the foreperson of the jury due to the fact that the present foreperson seems somewhat unable to preside this morning ." Lee v. United States, 454 A.2d 770, 772 (D.C.App.1982). That morning, prior to receiving the note, the judge's chambers had received a call indicating that the foreman of the jury would be late. In addition, a marshall suggested to the judge that there might be some question as to whether one of the jurors was intoxicated.

The trial judge held a separate voir dire of each member of the jury. The foreman of the jury denied any intoxication and one juror stated that there was no indication that the foreman had been drinking. Nine members of the jury stated that it was their belief that the foreman had been drinking. Their estimation of her degree of intoxication varied from observations that she appeared to be "a little intoxicated" to claims that she was flatly "drunk." 1

At the conclusion of the voir dire the trial court suggested that the petitioners agree to an arrangement whereby the foreman of the jury would be dismissed and the case would be submitted to the remaining 11 jurors. Petitioners rejected that suggestion and proposed instead that the judge declare a mistrial. The trial judge acknowledged that the juror in question was "somewhat [464 U.S. 972 , 974]

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