What happens when you are convicted of a crime, but a juror immediately afterward has a change of heart or claims they may have been pressured to give a verdict they didn’t believe in? Andrew Fahie, the former Premier of the British Virgin Islands found out.
On Feb. 8, 2024, a jury found Fahie guilty of orchestrating a scheme to bribe a potentially problematic government official and shield cocaine-filed boats docked in the British Virgin Islands in an effort to bring at least 3,000 kilograms of cocaine per month onto the island. While prosecutors thought they secured a unanimous conviction, two jurors immediately contacted the staff members of Judge Kathleen Williams to inform them they were no longer confident in their guilty verdict. In another highly irregular twist, one of the recanting jurors went so far as to contact defense counsel and leave voice messages for them. After mistaking the missed calls for a friend, Fahie’s counsel returned the call. The juror asked what would happen next in the case and expressed concern that if all the jurors would return they would, “never come to an agreement.” As juror-to-counsel post-trial communication in the U.S. District Court for the Southern District of Florida is permitted only with prior court approval, Fahie’s defense declined to speculate, advised the juror it was inappropriate for them to discuss the topic, and immediately reported the conversation to all parties.
This was a highly unusual situation, and legal experts heavily speculated what would come next given the limited avenues of recourse available. Some argued for Judge Williams to declare a mistrial, while others believed that the verdict should stand. The prosecution took the position that the convictions should stand on the theory that the jurors had already been polled under oath and their duties terminated. They argued, “[a] juror’s subsequent recantation, dissatisfaction, or anger with the deliberation process or the outcome cannot be the basis for impeaching a verdict.” Citing Federal Rule of Evidence 606(b) and Eleventh Circuit precedent for support, the prosecution argued that the only avenue available to Judge Williams was to inquire with the jury foreman as to any possible mistakes on the jury verdict form. Defense counsel argued for a limited inquiry, suggesting that the two jurors at the heart of this issue be questioned directly by the court. Then, based on their answers as to the existence of true unanimity in the verdict, the court should proceed accordingly.
Ultimately, Judge Williams proceeded with the defense counsel’s suggestion and convened a hearing to address the jurors’ positions on the verdict. While both jurors were subpoenaed, only one appeared. The juror who appeared affirmed the initial guilty verdict and stated she came to the conclusion of guilty freely and of her own volition. The judge declined to issue a bench warrant for the second juror and confirmed the convictions against Fahie.
While Fahie’s convictions and the subsequent jury so-called flip-flopping are an unusual and highly irregular event, criminal law practitioners need to be on notice of the remote possibility should a similar situation arise in their practice. Additionally, practitioners should be aware that judges have limited recourse, with the available options being allowing the verdict to stand, declaring a mistrial, or directly questioning the recanting juror(s). The timing of the juror’s retraction can be an important aspect that influences which of the three avenues the judge takes. In 2021, a similar situation played out in Texas state court. In State v. Gallien, after the defendant’s conviction and several days into sentencing deliberations, a juror had a change of heart and relayed in a note to the trial court that they felt pressured to convict. The trial court granted Gallien’s motion for a mistrial, but the appeals court reversed this order and reinstated the verdict because the note was inadmissible and insufficient to show jury misconduct or any other grounds to support overturning the verdict. Meanwhile, where the jurors reach a verdict but recant when they’re polled by the judge to confirm the verdict, the trials often end in a granted motion for a mistrial. Basic preparation and knowledge of what could happen in this specific scenario, and the significance of the timing of recantation and its consequences would benefit criminal law practitioners in the event lightning strikes twice and jurors in their case recant immediately after a verdict.
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