We earlier today announced our strikes in a capital murder case. While the clerk was calling the prospective jurors to inform them of their selection, she was informed that one had been admitted into the hospital to have a stent placed.While we do not yet know whether they will be able to proceed, we do know that the alternate, if seated, will in all likelihood shoot us down in flames.

I intend to argue that 36.29.(b) CCP does not apply because the potential jurors have not yet been sworn, and argue for either redoing the strikes with the disabled venireman removed from the pool or asking for a mistrial.

Any other suggestions, cites, advice, etc.?????

Posted my problem with the capital jury before we did any research.

We are stuck with the alternate under the authority of State v. Broussard, 910 SW2d 952.

Yeah, a capital murderer walks free because a judge thought he was smarter than the lawyers, jumping to the conclusion that he could declare a mistrial. Shame.