Eleven Angry Men and Women

In permitting the Libby jury deliberations to proceed with 11 jurors rather than seating an alternate, the judge is gambling that there will be no further need to excuse jurors. An alternate could have been seated but that would have required the jury to start its deliberations from scratch.

The operative rule is Federal Rule of Criminal Procedure 23(b), which states:

Jury Size.

(1) In General. A jury consists of 12 persons unless this rule provides otherwise.

(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties may, with the court's approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or

(B) a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.

Apparently prosecutor Fitzgerald had urged the judge to seat the alternate, but exercising his power pursuant to 23(b)(3), Judge Walton plowed ahead.

So what happens now if another juror is excused because he or she is exposed to press coverage of the case or for some other reason, such as illness? Then the jury will be down to 10, at which point the existing jury would have to start over, unless both the prosecution and defense agree to a 10-person jury. Given that it takes 12 to convict but only one to hang a jury, with each dismissed juror the defense is more likely to request a mistrial. Starting over later would be worse than starting over now, obviously. But query whether a jury instructed to begin their deliberations anew with the substitution of an alternate juror really does that. Isn't it more likely that the jury would rush through issues it has already deliberated about, at most pausing to get the new juror up to speed and to allow him or her to ask questions and raise issues? If so, does that suggest that seating alternates after substantial deliberations is problematic?