In our neck of the woods, misdemeanor courts often face the possibility of having to proceed with a jury of less than the constitutional complement of six as prescribed in Ballew v. Georgia. Ballew says that you need six warm bodies because any less waters down the
deliberative process and has potential fair-cross-section probs BUT, here�s the question, can this right to six be affirmatively waived (issue not discussed in Ballew). Here�s the cases we�ve found. Have you run across this issue and, regardless, what do you think?

Hatch, 958 SW2d 813 (CCA 1997) -- a felony appeal, in dicta discusses old cases permitting agreement to a trial by a jury composed of less than six on the theory that, if you can waive a jury altogether, you can waive the right to have six on your jury, too.

Buck, 599 SW2d 810 (CCA 1980) (panel opinion which included Clinton) -- post-Ballew appeal of a misdemeanor case where juror became ill and, without objection, the defendant was convicted by five jurors; D raised Ballew on appeal, but court ruled waiver applied. Buck was later overruled by Samudio to the extent that Samudio required an affirmative waiver intentionally relinquishing the
known right.

Hanley, 909 SW2d 117 (14th COA 1995) � misdemeanor case tried with five after juror failed to return to court; t/ct offered a choice b/t mistrial or agreement to continue with five; D acquiesced to trial by five and �by word and deed� waived his right to trial by six. Case looks at St const�l right to have six in a misd box, plus fact that there�s no provision allowing for less than six (like 36.29's less-than-
eleven rule), says less than six isn�t a jury, but based upon the old Texas case (also cited in Hatch), the statutory authority for waiver of a jury carries with it the concomitant right to agree to a trial by a jury composed of less than six. Goes on to acknowledges Ballew and holds that, to proceed with five, you must execute a
written jury waiver under 1.13(a). Absent a written jury waiver, case reversed.

Unpublished case: Vlatas, 1999 Tex App LEXIS 3445 (1st COA) after jury seated in this DWI case, one juror lets parties know about a death in his family due to a DWI driver. D wanted to continue with five, but mistrial declared over his objection. On appeal from denial of habeas DJ claim, court discusses Hanley favorably and writes that a written jury waiver is required in order to continue with less than six. Since no written waiver here, manifest necessity required mistrial and no DJ bar applies.

One more: Supreme Ct of Florida answered certified question and found that the Florida & US Constitutions permit a defendant to waive his right to a six-member jury and agree to be tried by a five-member panel. Waiver was personal, on-the-record, and after consultation with counsel. Defendant asked Ct to find that Ballew could not be waived; they declined b/c D knew exactly how many and which jurors he was getting.

Of course, article 1.14(a) says you can waive anything but the panel for punishment in a capital trial; Marin tells us about other errors which are structural.

Comments?

Even if you don't have an opinion on this question I would like to hear about whether this question has come up in any misdemeanor cases in your jurisdictions? Thanks

I don't do misdemeanors. But, since no one has responded, i'll take a shot at it. Burch v. Louisiana cannot be the final answer. Otherwise all states would have made provision for selection of an alternate juror. But, Johnson v. Duckworth, 650 F.2d 122, 126 n. 10 seems almost to suggest five is never enough. See also State v. Roy, 438 A.2d 128, 131 (Conn. 1980)("Because a five-member jury is constitutionally impermissible in a criminal trial; the defendant's trial could not continue with the original jury.") I still say follow whatever procedure is necessary to show agreement to five and go forward, if possible.

[This message was edited by Martin Peterson on 09-08-02 at .]

I have a case like this right now, arguing this afternoon.

What happened in my case is a juror did not show up for the trial with the excuse that a family member had died.

No record was made. The court signed an order saying that Defendant's Motion for Mistrial had been granted.

After we picked our second jury, but before they were sworn, defense counsel claimed jeopardy had attached because he did not make the motion for mistrial.

Come to find out, defense counsel talked to the prior prosecutor on the phone. Defense Counsel refused to go forward with 5. Somehow the Court typed up the order for Mistrial stating it was the defendant's motion, even though there is no record and both the defense counsel and the judge claim they did not speak to each other that day.

Defense counsel is claiming:

1. They didn't file the motion
2. Because the court did not find manifest necessity, jeopardy attaches and prevents retrial.

I am arguing that:
1. The State did not provoke or cause the mistrial.
2. The Court does not need to find manifest necessity, manifest necessity just needs to exist.

I am relying on the case posted in here- Vlatas, even though it is unpublished.

The way I find the two cases synonymous is that in Vlatas they opposed a mistrial and here the Defense possibly did nothing (even though there's a court order saying they did). Either way, the defendant's refusal to go forward with less than 5 created manifest necessity and the Court had no other option than to do a mistrial. There was no waiver of jury trial. So jeopardy has attached, but does not bar retrial.

My biggest problem is the state did not find manifest necessity, right?