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What, No One Else Noticed There Were 13 Jurors?

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Anyone reading today's Houston Chronicle story about a murder case that got declared a mistrial because there were 13 jurors instead of 12 might be forgiven for thinking that Judge Mark Ellis threw his bailiff under the bus.

"Houston Murder Trail Tossed Out After Bailiff's Huge Mistake" was the headline, and in the piece Ellis placed all the blame squarely on the unnamed bailiff.

To which a lot of people -- and Ellis heard from some -- thought: What, no one else in the courtroom could count to 13?

Ellis tells Hair Balls he definitely wasn't trying to pass the blame down onto an underling, and his explanation makes sense.


The 13th juror was an alternate and sat in the jury box throughout the brief trial. After closing arguments, the jury was sent out to deliberate, at which point -- out of sight of the judge, the lawyers and anyone else in the courtroom -- the alternate should have been dismissed and sent home.

"The first we knew anything was wrong was when they came back in and everyone saw 13," Ellis says. "In 23 years I've never heard of it happening."

He quickly called the two sides up to the bench; they agreed Ellis should interview the alternate in the hopes that she had not actually taken part in the deliberations. But she had, and therefore was the kind of outside influence that's barred and the reason jurors can't talk about cases they're hearing.

"She was very upset," Ellis says.

The matter has been handed over to the Sheriff's Department; the case itself will be retried (It's pretty much a slam-dunk conviction, involving a confession.) The accused will be in jail until the retrial.

But Ellis would like everyone to know that he's not blaming the bailiff for something everyone else should have caught.

"No, I'm not being a bad guy here," he says.

-- Richard Connelly

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