Judge Matthew D. Grove speaks with Morgan Rasmussen and Brisais Vargas, 17-year-old juniors. STRIVE Prep — RISE school in Green Valley Ranch hosted a Courts in the Community event, featuring oral arguments before a three-judge panel with the Colorado Court of Appeals on Tuesday, April 19, 2022. Photo by Steve Peterson

A Denver judge properly safeguarded the defendant's rights when he ordered a jury to restart its deliberations after 11 hours with an alternate substituting for a juror who had a medical emergency, the state's Court of Appeals decided.

Ricardo Castro challenged his 2018 convictions for sexual assault on a child by claiming it was "inconceivable" his jury could have truly begun its deliberations anew with the substitution of a woman identified as Juror W. But a three-judge panel for the appellate court decided former District Court Judge Morris B. Hoffman had done what was legally required to ensure a fair trial amid the unusual circumstances.

"To be sure, having to replace an ailing juror was less than ideal," wrote Judge Matthew D. Grove in the Aug. 11 opinion. But Hoffman "explained the situation clearly and gave the original jurors time to think and discuss if they could accomplish what the court was asking."

Castro's jury heard closing arguments on a Thursday and began deliberations that afternoon. Hoffman selected Juror W as the alternate, telling her she could leave and resume her life, but was not discharged from jury service. He cautioned Juror W not to discuss the case with anyone, and to avoid media coverage and keep an open mind.

The jury continued to deliberate through Friday — spanning 11 hours over the two days. During the weekend, and before reaching a verdict, one juror went to the hospital after suffering a heart attack. The juror's daughter relayed that the juror would no longer be able to serve.

On Monday morning, Hoffman talked to the remaining 11 jurors. Would it be feasible, he asked, for him to bring in Juror W and have deliberations restart?

"And what that requires is for all of you to begin your deliberations over," he explained. "It means tear up your notes, all the notes that you’ve made during your deliberations, erase any notes you’ve made on the whiteboard. Start completely over with an alternate. That’s what the law requires."

Hoffman stressed he simply wanted to know if any of the jurors had reservations about that scenario. After a half hour in the jury room, Hoffman received a note from the jurors saying they had agreed to a verdict on one of Castro's criminal charges before breaking for the weekend, and believed they were close to deciding the second.

"If the question is whether we can approach new deliberations w/ an open mind, because the alternate will be bringing new perspective, yes, we believe it’s feasible," the note read. "If the question is whether we can enter new deliberations in the same state of mind as Thursday, no, we can’t undo all the conversations / learning from prior deliberations."

Hoffman then brought Juror W back to the courtroom. He inquired if she had followed his directive not to talk about the case and to keep an open mind. She responded in the affirmative. Hoffman asked if she was willing to join the deliberations. Yes, said Juror W.

After making Juror W promise that she would speak up if the other 11 jurors attempted to steer the deliberations away from already-discussed issues, Hoffman gave the warning to the entire jury.

"You have to begin your deliberations anew. Which means you cannot say, 'Oh, remember, we’ve already worked through that. We have already all decided that this element of that charge has or has not been proven beyond a reasonable doubt.' You have to start over," Hoffman said. Juror W is not just "a new point of view. ... She’s in the jury."

Castro's lawyer further requested that Hoffman ask each juror individually if they harbored hesitations about the process. Upon questioning, none of the jurors indicated any problems. 

After five-and-a-half hours, the jury returned with guilty verdicts on both charges.

On appeal, Castro argued it was "inconceivable that after (11) hours of debate, the original jurors were truly able to put aside all of their conclusions and reach two untainted verdicts" so quickly.

The appellate panel looked to a 1989 decision of the Colorado Supreme Court, People v. Burnette, involving a jury trial in El Paso County. After the first day of deliberations, the trial judge authorized an alternate be substituted for a juror who could not reach the courthouse due to a snowstorm. The judge only briefly told the jury they needed to restart their discussions, and then released them to deliberate.

The Supreme Court concluded the substitution of an alternate juror does not require a conviction be reversed if the trial judge adopts "sufficient procedural safeguards." However, the El Paso County judge overseeing the Burnette case failed to ask if the alternate juror had avoided discussing the case before being recalled, and also did not question the other 11 jurors about whether they would have difficulty starting afresh.

In contrast, Hoffman followed all of those protocols for Castro's trial. In the appellate panel's view, Hoffman had endeavored to avoid the pitfalls a juror substitution could cause, namely that the alternate may not have the opportunity to persuade the other 11 jurors.

"Once the jurors confirmed that they could begin deliberations anew, the court thoroughly explained the reconstituted jury’s responsibilities, which included being open to Juror W’s point of view," wrote Grove. "Five and a half hours (of deliberations) is still a substantial amount of time, especially when one considers that some things — such as deciding on the procedure for selecting a foreperson or organizing the exhibits — may well have been more efficient the second time around."

The case is People v. Castro.

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