At the outset of jury selection, the judge will tell the prospective jurors the names of people anticipated to be witnesses at the trial, as well as the lawyers and defendant.  She will then inquire whether the jurors know any of these people.  On occasion, someone will raise a hand, but it’s a rarity.  After all, there are a lot of people in the world, and what are the chances that people who know each other will happen to be in the same courtroom at the same time?

But it happens.  And it happened big time in Earl Berry’s trial in Albany. From the Albany Times-Union :

A woman is chosen for jury duty in a rape case. On the second day of the trial, she realizes … she spotted the defendant committing the alleged crime.

Well, that is exactly what happened in Albany County Court on Tuesday when a juror informed Judge Thomas Breslin she witnessed 40-year-old Earl Berry on Sept. 21 with the alleged victim on Henry Johnson Boulevard.

It’s not like she knew the name, or hung out with the defendant.  It’s like she was an actual witness to the crime.

“I was actually driving home and saw him dragging her down the bridge — and he gave me the dirtiest look,” the juror told the courtroom. “I said, ‘Where is he going with this?’ “

She told the court she recognized Berry because “he looks like my cousin.”

Inexplicably, however, she didn’t realize that she had witnessed the crime, or that the defendant looked like her cousin,  It wasn’t until the second day of trial, during a detective’s testimony when the prosecution introduced photographs into evidence, that it dawned on the juror that she had seen the defendant before.  Which leaves one to wonder about her powers of observation with the living, breathing defendant in the same room with her up to that point.

Upon learning of the juror’s epiphany, Judge Breslin offers this astute observation:

“You realize, obviously, you cannot continue as a juror?” Breslin told the woman.

“Absolutely,” Juror No. 8 replied. “I don’t want to.”

Was there a question?  Similarly, as the prosecution realized that it had a newly discovered witness in its midst, defense lawyer Michael Jurena moved for mistrial.

“I think it’s the only fair thing to do,” the judge said noting the bond between jurors would create an awkward situation. “One of your own is now testifying. I think it’s unfair.”

Yet another masterful observation.  The prosecution considered proceeding with the trial without calling the juror as a witness, but decided against it, leaving Jurena with no choice.  This, however, meant that the defendant, having selected a jury with which (aside from the witness against him) he felt comfortable, and having commenced the trial that was, in Jurena’s view, going well, was forced to lose his jury and start over.

Two lessons obviously come to mind from this bizarre situation.  First, be sure that the jurors take a good look at the defendant before acknowledging that they don’t know him, and second, pray that your client doesn’t give “dirty looks” to passersby as he drags a woman over a bridge.

When the case is retried, it appears that the defendant will have some solid impeachment material to use against juror number 8 when she’s asked to identify the person she observed.  Like how she saw him for an instant and can identify him, but couldn’t tell that he looked like her cousin (Vinny?) when she spent two days in a courtroom looking at him.

As Jurena said, “you can’t make this stuff up.”