I didn't know that you could be convicted in federal court by an 11-person jury. Apparently you can.
Or at least you can in the modern era. In the old days, you had a right to a verdict by a 12-person jury in federal court, even though the Constitution doesn't require it. So if a juror got sick during deliberations, you got a new trial. (Prior to the conclusion of World War II, we dismissed alternate jurors once the jury retired to deliberate.)
Unbeknownst to me, however, in 1983, the federal rules of criminal procedure were amended to allow a judge to go forward with 11 jurors in this situation. Thereafter, in 1999, the rules were amended again to allow alternates to stick around even after deliberations have started. Which means that nowadays, if a juror gets sick during deliberations, the judge has the option to draft an alternate. Deliberations start over, but the defendant still gets to have his fate decided by twelve apostles -- err, jurors.
But the Ninth Circuit says that federal judges have a choice. The parties can stipulate to 11. The judge can put in an alternate. Or the judge can simply force the parties to accept 11. Her call.
That does indeed seem to be what the rule says. I think it might be nice to have the full 12-member jury, as this is a time-honored tradition, and some dude's liberty is at stake. After a year or so waiting for the trial, an extra day or so of deliberations (from starting anew) doesn't seem a complete debacle.
But if the district judge sees things otherwise, so be it.
