Here's how to pick alternates … next time

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A Seventh Circuit opinion Dec. 20 requires a quick break from Deliberations's holiday break. United States v. Mendoza instructs trial courts in the Seventh Circuit on how to, and how not to, select alternate jurors in criminal trials.

Alternates at random

In Mr. Mendoza's drug trial in Indiana federal court, the trial judge selected alternates in a way that will sound familiar, at least to lawyers who try civil cases: the whole group (sixteen, in this case) heard the evidence, and then alternates were selected at random and sent home. In Mendoza's trial, the only Hispanic juror turned out to be one of the four alternates, and Mendoza challenged this result and the whole idea of selecting alternates by drawing straws after the evidence is in. Judge Rovner, writing for herself and Judges Kanne and Posner (both of whom have expressed strong views about jury management, see here and here), declared the random method to be error — harmless error here, but error just the same, and not to be repeated. The opinion starts with Federal Rule of Criminal Procedure 24(c), which provides:

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

"We now request that the district court discontinue its current practice"

Since this is a holiday break post, I'll spare you analysis. Here's how the opinion goes on from there:

We have said that Rule 24(c) contemplates selection of alternates “either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated.” United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000). Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner. For example, all 16 tentative jurors may be more likely to devote their full attention to the evidence presented given the likelihood that they will not be selected as an alternate. If an alternate replaces a juror during deliberations, the collective knowledge of the newly constituted jury would be less likely to suffer. But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. See United States v. Delgado, 350 F.3d 520, 524 (6th Cir. 2003) (noting compliance with Rule 24 is exception to district court discretion in jury selection). Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred. See Delgado, 350 F.3d at 525; United States v. Sogomonian, 247 F.3d 348, 352-53 (2d Cir. 2001); United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000); United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998); United States v. Olano, 62 F.3d 1180, 1190 n.3 (9th Cir. 1995). As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4). Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in “encouraging strict adherence” to the rule, and we now request that the district court discontinue its current practice. Delgado, 350 F.3d at 525; Love, 134 F.3d at 601 (quoting United States v. Sivils, 960 F.2d 587, 594 (6th Cir. 1992)).