Count 'Em

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Sometimes it's the most basic things that matter. In college I was a lifeguard at a Girl Scout camp, and it turned out the most important skill wasn't saving swimmers; it was counting them. If you started with eleven red caps, you needed eleven red caps at all points during the swimming period, and most importantly, eleven red caps when they came out.

Likewise in trial, you can prepare the most thoughtful and probing voir dire anyone has ever done — and it's a waste of time if nobody counts the jurors.

Ten, eleven, twelve, . . .

It doesn't happen often, but it happened today in Houston. When the jurors came back with their verdict — we don't know what verdict — in Charles Mapps' murder trial, someone realized far too late that there were thirteen people in the group. An alternate had been allowed to deliberate. That won't seem like a big deal to a lot of people, but the fact is Mapps wasn't tried by a jury; he was tried by a jury plus one extra person who wasn't a juror, as surely as if any other spectator had wandered into the jury room and joined the group.

It sounds like they're blaming the bailiff for the mistake, saying the bailiff told the juror she couldn't leave until she signed some paperwork. I don't know the details, but typically, there'd be a little more blame to go around. Unless there's something really unusual about the courtroom, anyone could have counted those jurors, or kept an eye on that alternate to be sure she went out the right door. The best-case scenario now for the prosecution is that Mapps' murdered girlfriend's stricken family members have to testify again.

There are so many moving parts in a trial, and it's not easy to keep an eye on everything — especially the things you'd never imagine could go wrong. In the end, though, you've got to have eleven red caps.

Have you seen trials where the basics went wrong? TypePad has a cool new comments interface; try it out and let me know what you think.

Related posts here:

The Stars Come Out In Voir Dire

Juror Dismissed. Quick, Now What?