due process - 21 nov 2002

offered by f. todd lowell, attorney-at-law:

Not long ago I tried a jury trial in which the defendant was charged with digging clams in an area closed to the digging of clams. That is a criminal offense in Maine.

The defendant represented himself. Maine has a liberal jury trial right but you do not have the benefit of assigned counsel unless you are facing actual jail time - this is the same as the requirements of the United States Constitution as interpreted by the United States Supreme Court. A short time after we selected a jury and began the case one of the jurors told the jury officer that she smelled a strong odor of alcohol on the juror seated next to her. The allegedly intoxicated juror was a woman approximately 65 years old and it was 9:30 in the morning. The judge took a recess and the jury officer confirmed that the juror was, in fact, intoxicated. The following colloquy occured on the record:

JUSTICE A: Mr. B, you have several choices available to you. We can excuse the juror in question and seat one of the alternate jurors. This is a situation that shows why we select alternate jurors. This will allow the trial to continue just with a different juror to replace the intoxicated juror. You can also request a mistrial. If you do that, the trial stops and the State is free to try this case again later. Mr. B paused and considered his options for about 20 seconds.

MR. B: I've thought about it Your Honor. Now that I think about it if she is intoxicated I would just as soon have her on the jury.

JUSTICE A: Well, Mr. B, I appreciate your candor. In Lincoln County, however, we prefer to have sober members of the community as jurors....when we can find them.

Mr. B went to trial and submitted his case to a jury of 12 sober jurors. He represented himself and wore jeans and an Iron Maiden t-shirt. He handled himself well but was convicted in the end.

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