An untimely mistrial

August 12, 1993

The strange disappearance of a juror during deliberations on the manslaughter charges against a city policeman has complicated an already difficult case. There is no evidence that the juror's failure to show up for a whole day, until hauled in by police, was related to the case itself.

He has been held in contempt of court, and there the matter rests.

Still, the juror's failure to appear for a day caused a mistrial in a case that has aroused strong emotions because it involves a police officer standing accused of shooting without justification a 14-year-old suspected auto thief.

In the eyes of some members of the city's black community, the justice system is on trial along with the police officer. The mistrial complicates both verdicts.

Judge Ellen M. Heller seems to have made the best of a bad situation. She attempted to continue the manslaughter trial of Officer Edward T. Gorwell with the remaining 11 jurors. As is the custom here, the alternate jurors were dismissed when the jury started deliberating.

In some jurisdictions alternates go into the jury room with the others and are available to join in the voting if a juror can't fulfill his task. That raises the question whether it is worth inconveniencing alternates for a while longer in those unusual cases where a juror falls ill, or extraordinary instances occur like the failure to appear.

But the prosecution balked at continuing with 11 jurors, arguing that the furor over the missing juror was too much of a distraction. Judge Heller rejected both sides' proposal that she decide the case without a jury.

As serious as is the death of a teen-ager from a police bullet, there is more at stake in this case. Police officers on duty have a right to defend themselves, as Officer Gorwell insists he was doing. Members of the public equally have a right to be secure from police bullets except under strictly limited circumstances, even if they are breaking the law at the time.

Under the circumstances a mistrial was the least bad outcome. As it happens, the jury was badly split. It is not clear it could have reached a verdict anyway, which is no reason it should not have kept trying a while longer were it not for the distraction. In our justice system, issues such as those raised in the Gorwell trial are best decided by juries.

This is a case that not only demands that justice be done -- but also that all parts of the community see that justice is done.

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