dissenting:
I.
Having reviewed the same case decisions, and the same factual record as the majority, I conclude that appellant was entitled to a verdict free from the participation of the juror in question.
Against the background of the customary judicial admonition not to discuss the case except in deliberation, this juror — Juror number 9 — engaged in a pattern of questionable behavior throughout his service on the case. During a court recess shortly after opening statements, the courtroom clerk overheard the juror state aloud, but to no one in particular, that he questioned whether the police would plant evidence on someone in order to gain a conviction. The clerk reminded the juror that he was not to talk about the case in that setting. Later, after the case was submitted to the jury for deliberation, the trial judge learned that Juror number 9 had had a chance encounter and conversation with a neighbor, a defense attorney, who practiced in the trial court. Upon reflection, the lawyer decided to disclose the matter. In a hearing outside the presence of other jurors, the lawyer related that he saw his neighbor in a hallway and was informed that the neighbor was on jury duty. Without the lawyer being aware, the juror followed and observed the lawyer in a brief proceeding in a courtroom. Upon leaving the courtroom, the lawyer agreed to give the juror a ride in his car. As the lawyer recounted the time together, the juror stated that he could hardly restrain himself, when it was argued in the case being heard, that the police planted drugs on one of the defendants. The lawyer recalled that he may have laughed a little in response, but said nothing expressly on the subject. The juror, in answer to questions from the judge said, on two occasions, that he had not talked to his neighbor, nor anyone else, about the case.
II.
Once a case has been presented to a jury and given to them for deliberation, the role of the judge and counsel recedes. Questions of the kind that arose here can be multifaceted. The judge must make a reasonable effort to ascertain pertinent facts. At the same time, care must be taken not to intrude upon or unduly influence the jury’s function. It is this balancing of factors, which we commonly refer to as trial judge discretion. Such an approach recognizes that there is no one “correct” response to the wide range of questions which arrive suddenly and unexpectedly at the trial judge’s door.
In this instance the trial judge, with the participation of counsel, made a diligent and careful effort to resolve the problem. Indeed he tried unsuccessfully — because government counsel would not agree — to get the parties to proceed with an eleven person jury.18
This case does not involve tampering with a juror from an external source, unauthorized juror investigation, demonstrable false statements by a juror during jury selection, or some other form of clearly identifiable misconduct. Rather this ease presents questions more subtle in nature but nonetheless central to the jury function. The essence of factfinding is that the factfinder be free of bias or prejudice on determinative issues and similarly be reasonably impartial or open minded to the evidence presented. Thus courts require candor from jurors in response to inquiries and generally seek to preempt and minimize external influences upon their decisions. We have focused a primary concern on whether the accused has suffered actual bias at the hands of a juror which is the result of external communication. Hill v. United States, 622 A.2d 680, 684 (D.C.1993). Upon a showing of substantial likelihood of prejudice emanating from unauthorized contact, reasonable doubts should be resolved in favor of the accused. Id.
*656In the present situation, it is a combination of circumstances that causes me to conclude that the threshold of likelihood of prejudice has been satisfied and unremedied. Juror 9, despite instructions to the contrary, early in the case, showed an inclination to verbalize defenses being raised in the case in a public way. Later he raised the same aspect of this case under deliberation with a practicing attorney. We do not know, nor can we know, the complete and unedited nature of this. encounter. The attorney stated that the juror’s inquiry, understandably not elaborate or formal, went beyond generalities, but was about a specific defense raised in the case being heard. Although the judge made no specific finding, it appears that, in the course of questioning the juror, the court and counsel deemed him lacking in candor. Ultimately, in the last round of questioning after the verdict, the juror admitted that he had disobeyed some of the court’s instructions, but felt it necessary to better understand how the system works.
I recognize that it is likely that any one of these episodes would probably not suffice as a basis for discharging a juror. But viewed in total, the record discloses a juror who disobeyed judicial instruction, who publicly and privately talked about a case under deliberation, was less than candid with the court, and who reluctantly conceded that he felt a need to figure out the system rather than simply decide the case.
Appellee essentially argues that the juror’s contact with the attorney was so meager that it should not be viewed as substantial external contact, and further that none of the incidents form a nexus to actual prejudice in this case. Allowing the trial judge considerable room for discretion, it appears the standard of substantial likelihood of prejudice and partiality has been met. The wisdom of this standard is that it recognizes that, in reconstructing such matters, we simply can not know all the pertinent facts bearing on the question of juror prejudice. In fairness to the government, it is equally difficult to present rebuttal evidence. Thus, in my view, Juror 9 should not have been allowed to deliberate unless it was found that his response to the court left him in the posture of an impartial factfinder.
I would vacate the convictions, or alternatively, remand the case to allow the trial judge to make a finding from the existing record regarding the juror’s truthfulness to the court. Thereafter, the judge could determine if relief is warranted.
. See Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (a discussion of scientific studies of reduced jury size from the traditional number of twelve; reduction in size is generally deemed favorable to the prosecutor).