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The Illinois Supreme Court has ruled that if a criminal defendant wants a jury with fewer than 12 people and the judge allows it, a state prosecutor can’t stop it. In a unanimous opinion, the court rejected DuPage County State’s Attorney Joseph Birkett’s request for a writ of mandamus to force DuPage County Circuit Court Judge Peter Dockery to deny a request for a six-person jury made by defendant William Krolik, who is charged with attempted home invasion and armed robbery. The court said that it was an issue best left to the discretion of the trial judge and that the defendant has a right, under Illinois state law, to choose a smaller jury. “The state has not established that the seating of a 12-person jury is simply a ministerial action allowing it absolute veto power to foreclose a defendant from requesting, and the circuit court from considering, the empaneling of a jury of a lesser number,” the Supreme Court said in its Oct. 8 opinion. While some states have juries smaller than 12 people, it’s not common and it’s even rarer for a defendant to seek such a reduction, said Shari Seidman Diamond, a Northwestern University School of Law professor who researches jury issues. The issue typically comes up for appellate review when a defendant is trying to overturn a conviction by a jury of fewer than 12, she said. Diamond joined a group of law professors last year in an amicus brief urging the U.S. Supreme Court to take a Florida case to review its 1970 decision Williams v. Florida, which held that a jury of six functions as well as 12 for constitutional purposes. In their brief, the professors argued that the smaller jury is flawed in part because it is less likely to include ethnic minorities. The Court denied certiorari. Diamond doubts that many defendants will ask for smaller juries. “The common wisdom is that with a larger jury you have a better chance of getting a hung jury,” she said Birkett spokesman Paul Darrah said the state’s attorney’s office was “disappointed” with the court’s ruling, commenting that a smaller jury throws off the process for eliminating jurors, but added that no decision has been made yet on an appeal. DuPage County public defender Brian Jacobs, who is representing Krolik, said he was pleased about the decision because, with a six-person jury, he has more opportunities to challenge and eliminate jurors relative to the jury’s size and thus is better able to “craft” the jury. He said colleagues in his office have used six-person juries successfully in the past.

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