Factual Background: The complainant alleged that the defendant and co-defendants picked a fight with him while all four were detained in the Tombs, resulting in charges of attempted gang assault. During cross-examination of the complainant, counsel repeatedly asked whether one of the co-defendants called the complainant an “old [n-word].” After the fifth time, one of the jurors stood up and said “Please, I am not going to sit here and [have] you say that again. Don’t say it again or I’m leaving … I find that very offensive.” The trial court reprimanded the jury and ordered counsel to stop repeating that question. Counsel asked for a mistrial, or in the alternative, to replace the juror with an alternate or conduct a Buford inquiry. The court rejected all three requests and, instead, told the entire panel that if any of them felt they could no longer be impartial, they should tell a court officer. 

Issue Before the Court: Whether the court’s refusal to conduct a Buford inquiry constituted an abuse of discretion? 

Held: No.  

CAL Observes:

On a barren record (resulting from the lack of inquiry), a majority comprised entirely of non-Black judges (DiFiore, Stein, Garcia, Feinman) surmised that the juror’s reaction to counsel’s repeated use of the n-word was nothing more than annoyance at counsel’s tactics.

Judges Rivera and Fahey joined Judge Wilson in dissenting, highlighting the speculative nature of the majority’s analysis and its conflation of inquiry with unfitness. As Judge Wilson rightly points out, this juror’s reaction—interrupting cross-examination by standing up, ordering counsel to stop asking a question, and threatening to leave the courtroom if he didn’t—was not akin to a mere eyeroll or an exasperated sigh.  

As for the legal fallout, while this was a terrible decision (and one that demonstrates the importance of having jurists on the bench with more varied lived experiences), it can likely be limited to its unusual circumstances. Here, the juror’s outburst happened in open court, which allowed the court the opportunity to observe the juror’s demeanor and body language on the spot.  In the more common case, where the misconduct happens outside of the courtroom, some level of inquiry will be necessary to understand what occurred.