At 6:20 p.m., a court security officer reported that a female juror had complained about a male juror being “forceful.” The officer also gave the district court a note from the male juror who requested “input” about what to do because “we all are not agreeing on the claim,” “they feel that they can do this without my vote,” “Not [sic] is going to change my vote,” and “them harassing me is just making it no better.”

With the parties’ assent, the district court judge instructed the jury about “the importance of respecting each other and working with each other,” asked that they “decide as a group” whether “to continue deliberating this evening . . . or . . . to come back on Monday morning,” and allowed the two jurors to voice their concerns to him separately in his chambers.

The district court judge told the parties that the two jurors were “having some disagreements” about “the way [opinions were being] expressed” and that “the language that was used” suggested a “lack of respect.” The district court also stated that the juror who had submitted the note had reported he could not return on Monday due to “an appointment” that he did “not want to move . . . again.” The district court posted a court security officer outside the jury room and offered to instruct the jury to continue its deliberations.

While the parties discussed the matter, a third juror asked to speak with the judge. The third juror reported that the juror who had submitted the note had disagreed with the other six jurors about “something” and had “threatened to swing” at some jurors. When the district court shared this report with the parties, counsel for Ms. Bostick thought it “prudent . . . to allow [the jurors’] temperaments to calm” over the weekend and, if the juror who had submitted the note returned “on Monday and continue[d] to create the disturbance,” to decide then whether to excuse him from the jury.

The parties then agreed to allow the jury to return on Monday to continue their deliberations.

The district court recalled the jury to the courtroom and informed them that, due to the late hour, they could resume deliberations on Monday. The district court asked if any jurors could not return, and the juror who had submitted the note raised his hand, but, after further questioning, he said he could come around 11:00 a.m. At the request of the other jurors, the district court decided to resume deliberations at 9:00 a.m.

All seven jurors returned on Monday morning. At 9:40 a.m., the district court informed the parties that further problems required interviewing each juror and that it had posted court security officers outside the jury room. The district court stated that it had “already received several notes” that morning, that two of the jurors wrote that the juror who had submitted the note on Friday had confronted a male juror “chest to chest and threatened to punch him out,” and that one juror wrote that that juror had “used racist language.” The district court also read aloud a note from that juror stating that the jury “[thought] that as a group they have the right to treat me, talk to me, and do whatever to me, they got that . . . wrong” and “it’s up to me . . . to remind them that that’s not going to happen.”

When interviewed separately, the jurors stated that the juror who had submitted the note on Friday had insulted and alarmed them during their deliberations on Friday and that they “did not want to go there” on Monday. Five jurors speculated that his behavior was due to his embarrassment in having the other jurors vote against his request for a different daily trial schedule and due to not being elected as the jury foreperson. Three jurors stated that, soon after deliberations began on Friday, he disagreed with the other jurors, he was belligerent, and he goaded jurors to “[s]wing on me.” One juror said that he remarked “he was going to hit someone,” that he received the response, “If that’s what you need to do, go ahead,” and that he replied, “Well, I’ve been in jail before, so it doesn’t matter.” Four jurors stated that he used obscenities like “F-U,” and two of those jurors elaborated that he was “verbally abusive,” called each juror “stupid” in a different way, referred to the female jurors as “bitches,” and used “racially abusive” language and “slurs,” such as calling the Caucasian jurors “white asses.” And two jurors stated that everyone was frightened of him because he was “big” and that he caused the female jurors to cry.

The jurors also stated that he was uncooperative. Three jurors stated that on Friday he interrupted and ignored jurors who tried to discuss the case with him and that on Monday morning he refused to deliberate. Four jurors stated that he laid on the couch during most of their deliberations, he rebuffed fellow jurors’ repeated requests for him to explain his decision, he said he “d[id]n’t want to follow the instructions,” and when urged several times to consider the law, he responded, “I don’t care.” One juror recounted that he had stated, “This is what I want, and either you guys accept it or it’s going to be a mistrial,” and another juror recalled him saying, “You guys can’t do anything without me.”

When questioned by Ms. Bostick’s attorney, one juror volunteered that “we feel that six of us can definitely . . . finish the deliberations in 15 minutes” without the other juror, and a second juror responded affirmatively when asked if “the six can reach a verdict pretty quickly.”

Before the juror entered the courtroom, counsel for State Farm expressed concern that he would “intentionally say something to create a mistrial situation” and suggested excusing him for “juror misconduct” under Federal Rule of Civil Procedure 47(c) based on the jurors’ statements “that he’s physically intimidating to the other jurors, that he’s intentionally disregarding the law, [and] that his behavior is motivated out of malice.”

Ms. Bostick’s attorney also expressed concerns about his conduct and described the pejoratives he used to refer to women as “horrifying.” Even so, Ms. Bostick’s attorney asked that questioning continue to ensure that the juror was not “being isolated because he’s the holdout and they don’t like that.” When asked if he had “a position” on excusing the juror, Ms. Bostick’s attorney responded, “No.”

When the district court questioned the juror, he stated that he was frustrated on Friday “about . . . people trying to sway me a certain way” and added, “I’m too big of a human being for you to try to physically force me to do anything, and so that was the issue that I had.” When asked if he could continue deliberating, the juror answered, “I doubt it. No.” The juror likened his situation to being the one “hammer” that isn’t “pounding . . . the one-ton nail . . . deeper into the hole until it gets to the point you can’t pull it out. . . .” The juror also answered “no” when Ms. Bostick’s attorney asked whether he would deliberate if “you guys . . . go back and restart.” The juror denied that the stalemate was due to “personalities in the room” and responded affirmatively when asked if he had “a cooperative relationship with the[] other jurors.”

Ms. Bostick’s attorney objected to the juror’s removal, but the district court responded that it had to protect the other jurors from physical harm and found it doubtful that deliberations could resume in the light of “the words that the women say were used” and the jurors’ “complain[ts] about what they perceived to be racist comments.” Ms. Bostick’s attorney asserted that “the seven jurors are still, in theory, capable of deliberating,” but the district court reiterated that jurors had stated “they feel threatened” and had been insulted.

The district court then excused the juror from the jury. The district court told the juror that he was being dismissed “because of the things I’ve heard that have concerned me” and his use of “an ugly term” to refer to women. The juror denied “talk[ing] like that,” but when the district court judge said, “I just can’t have people feeling concerned,” the juror responded, “I understand that part.”

The district court told the remaining six jurors that the other juror had been excused and instructed them to “resume your deliberations and try to reach a verdict if you can.”

After the jury retired to deliberate, the district court asked the parties if there was “[a]nything else,” and each party responded, “No, Your Honor.” The jury returned a verdict in favor of State Farm.

Ms. Bostick filed a post-judgment motion to interview jurors and later moved for a mistrial, but the district court denied both motions. The district court ruled that it had “already allowed counsel to interview each juror,” that “it would be redundant to repeat the inquiry,” and that there was no reason to disturb the jury’s verdict.

After the district court denied Ms. Bostick’s motion for a new trial, she appealed to the Eleventh Circuit.

The Eleventh Circuit’s Decision

The Eleventh Circuit affirmed.

In its decision, the circuit court said that the district court was entitled to find that the excused juror had engaged in misconduct. It observed that jurors stated that the excused juror had intimidated them by threatening to use physical violence against them and by confronting one juror, that he belittled them using gender-specific and racial epithets, and that he refused to follow the jury instructions or to deliberate.

Moreover, the circuit court continued, even Ms. Bostick’s attorney had described the excused juror’s language as “horrifying.”

The circuit court then found that the district court had good cause to excuse the juror from the jury.

The Eleventh Circuit rejected Ms. Bostick’s contention that the excused juror’s behavior warranted a mistrial, finding that the district court had not removed the excused juror because he was a holdout juror but “as a last resort because [it] believed that he was going to physically harm other jurors.”

That decision, the circuit court said, was based on the juror interviews demonstrating that the excused juror was refusing to follow the district court’s jury instructions, “infecting the jury deliberations with racial slurs, calling female jurors ‘bitches’ and other pejorative terms, using physical violence or threats against other jurors, and engaging in other gravely inappropriate conduct.”

It concluded by reiterating that the excused juror had intimated that he would not hesitate to use force and stated that he would “remind” his fellow jurors to pay attention to him and that he was “too big of a human being” to be overlooked.

The case is Bostick v. State Farm Mutual Automobile Ins. Co., No. 18-11636 (11th Cir. July 29, 2019).