Mistrial in the Gorwell Case

August 11, 1993

Hard cases make bad law, according to a lawyer's adage. They also make for tough decisions by judges and lawyers. There was no textbook solution to the predicament caused in the manslaughter trial of Baltimore Police Officer Edward T. Gorwell when a juror failed to show up during deliberations.

Searching through court decisions around the country, Judge Ellen M. Heller could not find a precedent. So she improvised, but eventually was forced to declare a mistrial. Everyone involved, including the defendant and the family of the youth he shot in a controversial incident, must go through another wrenching trial.

Could the mistrial have been avoided? Perhaps, if the Baltimore courts did not release alternate jurors at the start of deliberations. In some jurisdictions, alternates sit in with the other jurors but do not have a vote. Thus, if a juror falls sick or is otherwise unable to complete a case, an alternate can step in. But that does not happen all that often. Is it worth the occasional mistrial rather than inconvenience dozens, perhaps scores, of citizens by forcing them to sit through a process in which ultimately they have no voice?

Judge Heller tried to get around the problem by suggesting that the remaining 11 jurors be permitted to decide the case. The prosecutor balked at that, fearing the incident in which the missing juror had to be brought back to the court by police was too much of a distraction for the other jurors. Both sides offered to let Judge Heller decide the case without a jury, but she balked.

The Gorwell case has stirred deep emotions, among those who believe the officer shot a 14-year-old suspected car thief without justification and those who insist the officer was simply doing his duty. Anything other than a jury verdict would be suspect by one side or the other.

As it turned out, the jury was badly split. Whether it could have reached a verdict eventually, even with the participation of the absconded juror, is anyone's guess. Judge Heller has ordered a new trial and the prosecutor has promised to proceed.

There is a serious issue in this case, not limited to the death of a teen ager. Police officers have a right to defend themselves, as Officer Gorwell contends he did. But members of the public, even when breaking laws, have a right to be secure from police bullets except in strictly limited circumstances. In our system of justice, juries are the best judges of conflicts between those two principles.

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