ALAS

In this appeal from a final judgment of second degree murder, the chief issue before us is whether the trial court committed reversible error in finding misconduct by a petit juror and ordering him removed during the course of the jury's deliberations. Although the question is close, recent high court precedent compels us to conclude the evidence before the trial court was insufficient to establish juror misconduct as a "demonstrable reality," an essential finding under governing case law. Because of that insufficiency, the juror's removal was prejudicial error requiring reversal of the judgment. In addition, we conclude the double jeopardy provisions of the federal Constitution do not bar defendant's retrial. We will accordingly reverse the judgment of conviction and remand the cause for a new trial.

A jury found defendant guilty of second degree murder for the November 21, 1998, slaying of Anton Segal. Segal was killed on a raucous Saturday night outside the Roaring 20's, a strip club on Broadway Avenue in San Francisco's North Beach district. Because the only issue before us on this appeal relate to the question of alleged juror misconduct, we need not recite…