DURING the seventh day of deliberations in the case of the two men accused of beating truck driver Reginald Denny during last year's Los Angeles riots, one of the regular jurors was replaced by an alternate. The jurors had to renew deliberations from the beginning, because the alternate was not in on the original deliberations.
The juror, an elderly woman known only as Juror 373, was dismissed for "failing to deliberate as the law defines it," the elegant legalese the judge in the case used. The other 11 jurors chose to use more simple English.
"She doesn't use common sense," they said in a written statement sent to the judge. That was the least of Juror 373's transgressions, it seems. The statement further alleged that "just when we've made progress [toward] a final decision, she is totally oblivious to what we've discussed and decided."
Predictably, the lawyer for defendant Damian Monroe Williams was not pleased.
"This is the basis for a mistrial or a new trial," attorney Edi Faal declared.
The day after, the same judge dismissed yet another juror, threw out two verdicts the jury had reached and had the jurors start deliberations from the beginning.
If you're getting a sense of deja vu here, it might be because Baltimoreans had a similar experience in the trial of Edward Gorwell II, the police officer who shot and killed Simmont Donta Thomas, a 14-year-old suspected car thief, in April of this year.
The Gorwell trial came to an end when a juror failed to show up on the second day of deliberations, and the presiding judge declared a mistrial after the prosecutor objected to the remaining 11 jurors deciding Mr. Gorwell's fate.
While the two differ in specific details as to why a regular juror was dismissed, both highlight once again the question of whether alternate jurors should be allowed in deliberations.
Had this been done in the Denny case, the jurors in Los Angeles would not have wasted seven days. Had it been done in the Gorwell case, the state, Mr. Gorwell, and Simmont Thomas' parents would not have to go through the agony of another trial.
But there are those who disagree. Henry Belsky, the attorney for Mr. Gorwell, said, "If alternates aren't going to have a vote, there's no reason for them to be in on the deliberations. I see no reason to change the system."
Another lawyer, A. Dwight Pettit, said, "I don't see how it could work with our system. There are enough hung juries with 12 people. It would add more confusion and complications and goes against the fundamental concept of a jury trial."
But Alexander Palenscar, deputy state's attorney for Baltimore City, had the opposite view.
"It's a novel idea," he said in a telephone interview. "I think it's a good idea. But I've never run into a case where an alternate juror saves the day, and I've been here 20 years. . . . Deliberations generally don't take that long. But it might be worth considering having the alternate sit in on deliberations having no vote and perhaps not even participating in the discussion."
But Judge Ellen Heller, the circuit court judge who presided over the Gorwell trial, is of one accord with attorneys Belsky and Pettit on this subject.
"I don't think alternates deliberating is a wise idea," she said. "It would be an invasion of the jury's privacy . . . Having an alternate juror deliberate but not vote wouldn't be fair to either side. I think that's not due process or fairness."
Maryland law, Judge Heller pointed out, requires that alternate jurors be "dismissed when the jury retires to consider its verdict" and that "a jury shall consist of 12 persons unless the parties stipulate at any time in writing or on the record that the jury shall consist of any number less than 12."
What Maryland doesn't have -- and what Judge Heller would like to see voted into law -- is something similar to a federal law which allows the judge to decide whether to continue the trial with 11 jurors.
Judge Heller didn't have that discretion in the Gorwell trial, because state law doesn't provide for it.
Some states, it has been claimed, either allow alternates in on deliberations or permit a jury of variable size.
Tom Munsterman, of the Center for Jury Studies of the National Center for State Courts, cites Pennsylvania as one state that provides for variable jury size as opposed to alternates. This practice also prevails in civil cases at the federal level.
Other states have allowed alternate jurors to sit in on deliberations when it was expected that the trial would be excessively long, in order to prevent a mistrial in the event that one of the regular jurors had to be replaced, according to Mr. Munsterman.
"The presence of the 13th person in the jury room is not as taboo as it once was," claims Mr. Munsterman.
Aberrations or not, the Denny trial and the Gorwell mistrial may indicate that states need to change their laws regarding alternates participating in deliberations or at the very least abandon their slavish devotion to the number 12 as it pertains to the constitution of a jury.
As a federal court noted in its decision to allow 11 jurors in federal cases, "The fact that the jury at common law was composed of precisely 12 is an historical accident, unnecessary to effect the purposes of the jury system and wholly without significance except to mystics."
Gregory P. Kane is a reporter for The Baltimore Sun.