Judges get more leeway with jurors

Friday, May 27, 2005 | 9:04 a.m.

CARSON CITY -- The Nevada Supreme Court ruled Thursday that a District Court judge has the discretion in handling cases of a juror's misconduct, rather than just declaring a mistrial.

The court had held in a prior decision that the judge must grant a mistrial. "We conclude today that a District Court has discretion to remove a juror mid-trial for violating of the court's admonishment rather than declaring a mistrial," the ruling said.

In the case before the court, a juror was dismissed for having conversations about the case with a fellow juror.

In its ruling, the court upheld the conviction of Benjardi B. Viray in Las Vegas of six counts of lewdness with a child under 14, four counts of sexual assault of a minor and two counts of preventing or dissuading a person from testifying.

Viray, now 44, received multiple life terms. According to prison records, he will be eligible to apply in 2013 for parole from his first life term.

On the fourth day of the Viray trial, District Judge John McGroarty received a note from a juror expressing reservations about his role as a juror and asking to be released.

McGroarty interviewed the juror, who said he awoke at night trying to find a solution that would not be disruptive for both parties. He said the case should have been submitted to family counseling rather than handled as a criminal case.

"No matter how I voted it would only bring more misery and devastation," the juror told McGroarty. "I don't want this on my conscience."

The juror admitted he had talked with a female juror about the case. The second juror said she had talked with the first juror but had not made up her mind about the case.

McGroarty dismissed the first juror, and Viray objected. As an option, he asked for a mistrial.