1. The First Court of Appeals erred in holding a jury of five was a mandatory alternative to mistrial when the United States Supreme Court has found a jury of five members unconstitutional.This is a misdemeanor DWI case. The State and defense picked a jury, but the case was recessed for the night. The next morning, before any evidence was presented, the trial court found out that one of the jurors had had a cardiac event. The case was reset for a couple of days. When the case was reconvened, the trial court discovered that the juror was still in the hospital because his doctor would not release him until after the juror had taken a stress test. The earliest he could do that was Tuesday of the next week. The State moved for mistrial, but the defendant objected (sensing the upcoming "manifest necessity" argument).
2. The Court of Appeals erred in finding the record suggests the State and Appellant were willing to proceed with five jurors.
The trial court initially reset the case for six more days without ruling on the mistrial. However, the court met with the attorneys later that day to discuss what to do. Three jurors could remain available for trial, but one of them would be unavailable on two days the following week for a business trip. The deputy left messages for the two remaining jurors, but was unable to reach them.
The State withdrew its motion for mistrial. The trial court sua sponte granted a mistrial. In response to the mistrial, defense counsel objected that this was a one day trial and requested a short recess of a week or two. He also expressed the defendant's willingness to proceed with five jurors. Nothing doing. The mistrial was granted, and when the State sought to retry Garza, he filed a pretrial writ of habeas corpus claiming that retrial violated double jeopardy. The trial court denied relief, and Garza appealed.
The court of appeals reversed. While the Code of Criminal Procedure doesn't address how to proceed when a juror becomes disabled in a misdemeanor case, the court of appeals noted that misdemeanor trials should be treated similarly to felony trials. Additionally, a defendant can waive his right to a jury, so he should be able to waive his right to a jury of six in a misdemeanor case. Because they could've proceeded with less than six jurors, the mistrial was not a "manifest necessity" and the double jeopardy clause barred retrial.
The court of appeals also issued an updated opinion that addressed the State's claim in the petition for discretionary review that the constitutional minimum number of jurors is six. The court distinguished Ballew v. Georgia because that interpreted a statute that always set the number of jurors at five even over the objection of the defendant. Here, the defendant was willing to proceed with less, and that isn't a constitutional violation, according to the court of appeals.
[Ah, but does it change the "manifest necessity" calculus? Also, this isn't a situation where we're talking about missing one juror, it looked like there might be an absence of two. If you add in the lack of contact with the other two jurors, the trial court may have reasonably regarded this as having gone from a six person jury to a two person jury. Perhaps this is one of those rare, extreme circumstances where a mistrial would've been proper. The trial court wasn't being unreasonable here, he was trying to engage in one of the stickiest parts of the judicial job, scheduling. I think the CCA might be kind of sympathetic to that. Don't get me wrong, before the State brought up Ballew, I thought they were screwed. They let that capital murderer go free on just this same argument. But with a collapsing jury in this case, the trial court clearly making an effort to keep this jury alive, and Supreme Court case (and a CCP statute) saying misdemeanors need six jurors, I'm not so sure any more. Good work on the State's part.]
Here's a link to the CCA case info. And here's a link to the court of appeals case info.
