Colorado law allowing verdicts from 11-person jury ruled unconstitutional

The Colorado Court of Appeals struck down a state law as unconstitutional Thursday, finding that felony criminal defendants are entitled to a 12-person jury and that the law saying otherwise was wrong.

The unanimous decision stemmed from a 2016 Denver case in which 11 of 12 jurors wanted to find a man guilty of cocaine possession, but the last juror refused to vote guilty because he philosophically disagreed with the state’s drug laws, according to court documents.

The judge presiding over the trial dismissed the one holdout juror — finding he was refusing to follow the law and perform his duties as a juror — and sent the remaining 11 jurors back to continue deliberating. The jury then returned a guilty verdict.

The judge followed state law — which explicitly allows an 11-person jury to return a verdict if a juror is dismissed for cause after deliberations begin — but the Court of Appeals on Thursday overturned the man’s conviction and ordered he be given a new trial because that law violates the state’s constitution.

“The statute is invalid,” a panel of three judges wrote in the opinion.

It’s rare for the courts to invalidate state laws as unconstitutional, Denver attorney Christopher Jackson said. The Court of Appeals’ decision may apply retroactively, but it’s unlikely to affect many defendants because jurors are not often dismissed for cause after a jury begins deliberating, and after alternate jurors have been dismissed.

“This would be a very small group of people, because this just doesn’t happen very often,” he said.

The state law allowing an 11-person jury verdict was passed in 1994, with the idea that carving out the exception would save courts the expense of re-doing trials after getting all the way to the late stage of jury deliberation, according to the Court of Appeals opinion. At the time, lawmakers believed Colorado’s constitution did not guarantee the right to a 12-person jury.

But the groundwork for Thursday’s decision was laid in 2005, when the Colorado Supreme Court found that the state’s constitution did, in fact, guarantee defendants the right to a 12-person jury in felony criminal trials.

At the time, now-retired Chief Justice Nathan “Ben” Coats noted that the justices’ decision “all but strikes down the General Assembly’s attempt to avoid mistrials upon the dismissal of a juror for cause during deliberations,’ the opinion says.

The panel of judges agreed with Coats’ 2005 assessment in their opinion Thursday.

“The right with which we are concerned is the right to be tried by a 12-person jury,” the opinion reads. “Such right is not vindicated simply because twelve jurors are selected to serve; such right is effectuated only when twelve jurors complete the trial and deliberate to a conclusion in the case.”

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