Baker's Dozen: The Unseen Thirteenth Juror in Kentucky Courts

            It is not at all unusual for a court to select one or two alternates in a trial proceeding so that there is a fail-safe should one or two of the original jurors be unable to deliberate in the final stages of the case. Sometimes jurors become sick. Sometimes jurors are disqualified by the court from continuing in their duty as a juror. However, if all of the original jurors are capable of deliberating, the court usually dismisses the alternate jurors so that only twelve jurors deliberate on the fate of the case.

            However, in Kentucky, this is apparently not always the case. In June the Supreme Court of Kentucky heard two consolidated cases from defendants convicted on drug related charges in which there was an overlooked thirteenth juror in deliberations. In Kentucky, the alternate is not named before the court clerk randomly chooses them and removes them from the jury prior to the jury being sent into deliberations. However, in the cases discussed in Sevier v. Kentucky, the court clerk in each case inadvertently failed to remove the alternate juror from the jury and the mistake was not realized until the jury had returned from deliberations with their unanimous decisions to convict. The defendants appealed on the ground that the extra juror constituted an outside influence on the juries and therefore the convictions should be reversed and remanded for retrial, citing persuasive authority from Wyoming and Maryland. However, the Supreme Court of Kentucky determined that, because the thirteenth juror was unknown, unlike the cases in Wyoming and Maryland where the alternate juror was pre-selected and so should have been automatically excluded from the general jury, the addition of the unknown juror could have benefitted the jury and the defendant by adding an additional perspective which may have prolonged deliberations and gave the defendant a greater chance of being acquitted because the state was then “required to convince an extra juror to reach a unanimous verdict.”¹

            However, the logic of the Kentucky Supreme Court seems to overlook an obvious problem. The addition of an extra juror who should not have been in the deliberation room in the first place, despite the fact that this extra or alternate juror had not been identified, constitutes an outside force that could adversely affect the final judgment of the correct twelve jurors. The mere fact that the outside force could have been any one of the thirteen jurors in deliberations in these cases does not remove the fact that there was one juror in the room who should not have been there. We all know that two wrongs don’t make a right, so the decision of the Kentucky Supreme Court to let the decisions of these tainted juries stand simply because the extra juror could not be identified is wrong. The procedural rules of the Kentucky legal system were not followed and the Supreme Court should have recognized that such a potentially egregious harm requires a reversal of the conviction and a retrial on the matter, with only twelve jurors deliberating.