Since 1683, New York has guaranteed that criminal defendants would be tried by a 12-member jury.
Now, the state’s highest court has unanimously upheld a verdict handed down by only 11.
The decision that broke 342 years of precedent, set when New York was a colony and judges wore wigs, required almost-impossible-to-replicate circumstances involving a man with an escort, a couple of machetes and, later on, a well-timed headache.
In a 16-page ruling last month, the seven justices from the New York State Court of Appeals wrote that the circumstances that justified the loss of the right to a 12-person jury were “exceedingly rare.”
The case began in 2017, after Derek Sargeant paid a 20-year-old escort to come to his home in Queens, according to court documents. The woman went to his basement and was startled by what she saw: guns.
She told Mr. Sargeant, now 62, that she had seen the weapons, and they argued. She ran out and called 911.
Officers discovered brass knuckles, a pair of machetes, two guns and 81 rounds of ammunition. They also found 2,513 blank credit cards and supplies for printing fake numbers on them.
Mr. Sargeant was charged, and on Jan. 23, 2019, the jurors — all 12 — began to deliberate. The alternates had been dismissed as deliberations began, as is common, though sometimes they remain and are kept separate from the jury.
The next day, Mr. Sargeant, who had not been jailed, complained of a severe headache. The judge, Gene Lopez, let him go to the doctor and let the jurors go for the day.
That afternoon, the jury foreman was confronted at his home, according to the decision. It was a rainy day, and the foreman said the man wore a hat, sunglasses and a high-collared jacket. The man told the foreman that Mr. Sargeant was innocent and, after an encounter that lasted less than a minute, departed, according to the foreman’s account cited in the ruling.
Now, prosecutors told the judge, the foreman was too afraid to testify that the mysterious visitor might have been Mr. Sargeant himself.
The judge believed he was and dismissed the juror, who said he could no longer be impartial.
Justice Lopez then faced a choice: declare a mistrial or allow the remaining 11 jurors to continue. The judge decided that Mr. Sargeant had brought the circumstances upon himself and had forfeited the right to a full jury.
The 11 jurors convicted Mr. Sargeant of weapons possession and of having devices to commit forgery, and he was sentenced to six years.
Mr. Sargeant took his case to the Appellate Division’s Second Department, arguing that an 11-person jury violated his constitutional rights, but that court upheld Justice Lopez’s decision. Mr. Sargeant then went to the Court of Appeals, the state’s highest, which agreed on Nov. 20 with the trial judge.
“In the 342 years that the right to trial by a jury of 12 persons has been codified in New York, we know of no other cases that involve forfeiture of that right, a fact that underscores how exceedingly rare are the circumstances that justify a forfeiture,” it said in its ruling.
Melinda Katz, the Queens district attorney, praised the court.
“This defendant tampered with the jury on his criminal trial during the most critical stage of deliberations,” she said. “His conduct was egregious by every measure.”
During the appeal, Mr. Sargeant’s lawyer, Sarah B. Cohen, argued that forfeiting the right to a 12-member jury — even in extraordinary circumstances — opened the door for smaller panels. Ms. Cohen could not be reached for comment on the ruling.
In most states, 12 jurors are required for criminal trials. The number dates back centuries.
In the year 725, Morgan the Generous, a Welsh king, settled on 12 because, he said, “for as Christ and his Twelve Apostles were finally to judge the world, so human tribunals should be composed of the king and 12 wise men.”
It became part of English common law, the basis for American jurisprudence. In medieval England, if an accused person did not have 12 people to vouch for his innocence, he was presumed guilty. Alternatives were a duel or carrying a piece of red-hot iron. If the wounds healed within three days, the defendant was deemed innocent.
The days of trial by fire are gone, and the chances that modern defendants would lose the right to a 12-member jury are exceedingly slim, said Bennett Capers, a former prosecutor and an associate dean at Fordham Law School.
A defendant would have to threaten a juror during deliberations, and that juror would have to say he or she could no longer be impartial, Mr. Capers said.
Had Justice Lopez not let the 11 jurors proceed, Mr. Capers added, that could have also set a startling precedent. Defendants could have intimidated jurors with impunity if “they sensed that the jury was not going to go their way.”
“They could start over with a fresh jury — just another reason it makes sense that a defendant should not be able to benefit from his misconduct,” Mr. Capers said.
Chelsia Rose Marcius is a criminal justice reporter for The Times, covering the New York Police Department.
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