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When the jury has no alternates

Dec 24, 2008 When the jury has no alternates

Photo from website of U.S. District Court (W.D. Mi.).

Why would a prosecutor and judge not try to have alternate members on a criminal jury? Certainly a criminal defense lawyer might not raise the issue, in order to have a chance — if a juror were stricken — for a mistrial to get a better jury, to move settlement negotiations further, or to have the advantage of better knowing the opponent’s strategy and evidence on retrial.

Steven Powell was accused of several counts of third degree sex offense, and proceeded to trial in a Maryland Circuit Court. Nobody sought alternate jurors. Soon after Mr. Powell’s jury was selected and sworn, and before opening statements, one of the jurors informed the judge that he knew Mr. Powell. The juror said he was concerned that he could not be a fair and impartial juror, so the judge struck the juror, leaving eleven jurors in a state that guarantees criminal defendants a twelve-person jury. Powell v. Maryland, ___ Md. ___ (Dec. 15, 2008).

Powell’s attorney declined to proceed with an eleven-member jury. At the time, it seems that the remaining potential jurors were in the courtroom and had not been dismissed, and the judge decided to proceed to select a replacement juror from the remaining potential jurors. Powell’s lawyer objected, but did not move for a mistrial. Had Powell made such a motion, he would likely not have had a good argument against a retrial. The parties proceeded to select a replacement juror, but the judge refused to permit the parties to exercise peremptory strikes against any of the original eleven jury members. Powell v. Maryland

Maryland’s intermediate appellate court affirmed Mr. Powell’s conviction, and said that by not moving for a mistrial, Mr. Powell waived making his complaints about seating the replacement juror. Six of the seven judges of Maryland’s highest court last week reversed Mr. Powell’s conviction, finding no obligation for the defendant to make a mistrial motion to protect that right. Here, defense counsel said "[t]his is going to be a mistrial" after refusing to proceed with an eleven-member jury, but he did not make a motion for a mistrial, but that was neither here nor there for the outcome before the Court of Appeals.

Concurring in the result, Judge Murphy said that a mistrial for choosing from the remaining jury pool should only have been granted if the defendant had moved for a mistrial. Judge Murphy concurred in the reversal of Powell’s conviction due to the trial judge’s refusal to permit any peremptory strikes to be used against the original twelve jurors during the selection of the replacement jurors.

How would your state’s law have handled Mr. Powell’s jury situation? Jon Katz

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