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So I went up and watched jury selection in the Felony DWI trial in the district courtroom and got to witness something unusual. Here's what happened. (Background: Felony DWI means the defendant is charged with DWI and has at least twice before been convicted for DWI, and this defendant intended to plead guilty and have the jury assess punishment.) Each side in a criminal case can take off any ten potential jurors from the panel that he wishes. However, without "wasting" one of those ten strikes, he can ask the judge to remove a potential juror if he/she said something that indicates they would not be fair (that's called "for cause.") After the judge removes any potential juror "for cause", you need an absolute minimum of 32 people still sitting on the panel before the two sides exercise their ten strikes. Assuming the State and the Defendant do not strike the same person, then 20 people would be removed leaving ten to sit on the jury. (The strikes are made secretly and then turned into the district clerk -- neither side gets to know beforehand who will be removed by the other.)
It being summer time, only 35 people showed up for jury duty today. That doesn't give a whole lot of room for error. If, say, four people say something that gets them struck for cause, we're down to 31 people. If the State and the defendant then use their ten strikes, that leaves nine people. You can't have a trial with eleven people.
So the defense lawyer was conducting his voir dire (questioning the panel) and got to this critical question (after much explaining): Can everyone, as they sit their right now, say they can fairly consider the "full range of punishment." That is, can they can "consider" (but not necessarily give) the maximum of ten years in prison and a $10,000 fine. And can they "consider" (but not necessarily give) the minimum sentence of probation with no fine. The potential jurors don't have to promise to give a particular sentence (they haven't even heard the facts) they just have to say they'll keep an open mind about the full range of punishment.
That's when the jury panel started dropping like flies. By my count, there were 20 people who said they could never even consider probation in a Felony DWI case. The judge was left with no choice under the law but to remove them from the panel.
That left us with only 15 potential jurors. Normally, this causes the defendant to jump up and down because he can kill the case right now (although be retried at a later date) by exercising his 10 strikes. You can't have a jury with only five jurors.
At this point, as smart people do, the parties tried to resolve the case. The State lowered it's plea bargain a little bit and even gave a couple of options (I'll tell you those later -- this is good stuff). But the defendant balked.
OK, I thought. Trial over. Everyone go home.
Nope. The defendant told his lawyer he wanted to go forward with this jury. The State was told and agreed (they could have killed the trial to by exercising their 10 strikes.) So the State announced it was only going to use one of its strikes, the defendant said fine, and then exercised two strikes. That left twelve remaining.
And now the trial goes on.
From the defendant's standpoint, I think the guy just wants to get it over with. The remaining potential jurors weren't bad for him, but normally a defendant wants to put off the inevitable. And, from a defendant's lawyer standpoint, I'd always suggest shutting the trial down and coming back another day. As my law partner taught me ten years ago when we faced an almost identical situation: "They can convict you if they don't have a jury."
But the client calls the shots. The lawyer can only advise.
Lets' see how this works out.
Edit: Yep, I used some "Wise County math" in the original version.
