The Fifth Circuit Court of Appeals tossed a Dallas jury's conviction of Richard Leal on a rather odd technicality: the record shows there were only eleven jurors instead of the twelve required.
Leal was arrested with a gun, crack cocaine, marijuana, 57 blue pills of M-30 containing fentanyl, and methamphetamine tablets.
Leal was easily convicted of felony possession with intent to deliver fentanyl and sentenced to 30 years in prison.
The prosecution maintains that even if there were only 11 jurors, the conviction should stand, arguing that Leal had forfeited his complaint for review on appeal.
By failing to bring this issue to the court's attention, Appellant eliminated the court's opportunity to remedy the issue, if in fact there was a problem to remedy. Appellant also did not object to the trial proceeding with 11 jurors, if in fact, only 11 jurors were seated.
However, a felony in the state of Texas requires 12 jurors for conviction, so that argument was a failed start.
The Dallas judge who heard the case maintained that there were actually 12 jurors.
‘I can assure you that there was a 12th juror,' Judge Gracie Lewis said in an email to WFAA. ‘I do not have any independent recollection of this particular case, but I have never tried a case with only eleven jurors. Furthermore, the fact that none of the attorneys brought it up during the trial would underscore that there were 12 jurors.'
But a judge's assurances aren't legal evidence.
District Court Judge Mike Lee wrote,
It defies logic that neither the trial judge, nor the bailiff, nor the court reporter, nor either party noticed throughout the entire trial that the jury box was missing a twelfth juror. Logic dictates there must have been twelve jurors; otherwise, someone would have said something about the empty seat in the jury box. But the record reflects the seating of eleven jurors, nothing more. And on appeal, the record matters.
The DA's office is trying to decide whether to appeal the Fifth Circuit's decision, but first they said,
We are currently examining the record and any other source of information to determine whether there is any indication that a twelfth juror was present.
My working theory is that the twelfth juror was a member of GenX.
No one ever notices them.
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