With alternates gone and jury at 11, defense can make the call.
A reputed St. Paul gang member on trial in a high-profile rape case will likely be given the choice on Thursday of whether he wants to have a mistrial declared or to trust his fate to only 11 jurors.
If there is a mistrial, the teenage victim and witnesses would be expected to repeat their emotional testimony if the prosecution moves ahead with a new trial for Mang Yang, who faces four felony charges, including first-degree criminal sexual conduct and committing a crime for the benefit of a gang.
The smaller jury is the result of a series of unusual twists, including one juror who needed emergency surgery and hasn't been able to return to duty. Two alternate jurors were excused earlier in the trial after one was overcome with anxiety and the other fell asleep during testimony.
In his 20 years on the bench, Ramsey County Judge Gregg Johnson said Wednesday, he's never had an issue like this. He has had trials last five weeks, for example, without losing jurors, and this was to be only a weeklong trial.
Yang, 24, of St. Paul, has maintained his innocence. Co-defendants testified that Yang and a 38-year-old St. Paul man planned the gang rape of a 10th-grade girl, whom Yang had picked up from school and driven to a party where she was attacked on Nov. 17, 2011.
The law says it's a defendant's right to have 12 jurors hear a criminal case. During jury selections, 14-member panels typically are seated with two alternate jurors included in case one or two jurors drop out.
In a case where there are not 12 jurors, Minnesota's Rules of Criminal Procedure state that defendants must agree to a reduced number of jurors before a trial can go on.
If a defendant agrees, both sides could then stipulate to proceed with a reduced jury, and a judge must approve it.
If the defendant disagrees, the judge has no choice but to declare a mistrial, under the rules.
Before the latest juror was hospitalized with a foot infection requiring surgery, Johnson had excused two jurors who accounted for the alternate positions on the 14-member panel.
While the now 16-year-old rape victim testified last week about details of her rape, one woman juror was overcome with anxiety and was excused from duty.
Another juror fell asleep later as co-defendants accused Yang. She explained to the court that she had a sleepless night due to hurting her foot. Because she had trouble staying awake and had missed testimony, Johnson excused her, too.
On Tuesday morning the trial was delayed when Johnson said one of the male jurors needed an emergency medical procedure.
The trial was expected to resume Wednesday afternoon, but the juror remained hospitalized Wednesday.
It appears unlikely he'll return, officials said.
So Thursday morning, Johnson, Yang and attorneys for both sides will hold a hearing to discuss the status of the 12th juror and his ability to return to duty.
The prosecution had rested and the trial was in its defense phase when put on hold.
Joy Powell 651-925-5038