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Legal gamble: Kimberly Kessler jurors are sworn early, posing the risk of a COVID-related mistrial

If illness were to claim three or more jurors, the Kessler case would end in mistrial, putting the long-awaited trial in jeopardy.

YULEE, Fla. — Prosecutors made a high stakes legal gambit Wednesday, choosing to have the jury in the Kimberly Kessler murder trial sworn in days ahead of trial. 

The panel of 12 jurors and two alternates was instructed to report Monday at 8 a.m. for the start of the case, an instruction that carries uncertainty in the era of COVID-19.

If illness or other issues prevent three or more jurors from reporting, there wouldn’t be enough to try the case. That would force the judge to declare a mistrial and start the entire process over again.

On the other hand, if prosecutors elected not to have jurors sworn, the process would technically not be over. That means the defense team would be permitted to make changes to the jury up until Monday morning, potentially electing to use their five remaining juror strikes to shake up the panel.

The concern was real enough to consume several minutes of discussion as prosecutors weighed the risks. Circuit Judge James Daniel acknowledged Assistant State Attorney Donna Thurston had to make a strategic choice. “I know what your concern is,” he told her.

Daniel noted he’d be forced to keep the entire potential jury pool intact if they weren't sworn Wednesday, and bring them all back Monday morning just in case.

“Nobody’s going anywhere until that jury is sworn,” he said.

Alternatively, if sworn jurors were unable to report Monday for whatever reason, Daniel cautioned, “Jeopardy attaches.”

The prohibition on retrying someone for the same crime is based on the Double Jeopardy clause of the Fifth Amendment to the constitution, and applies when a jury is empaneled and sworn in. It doesn’t typically apply to mistrials, but simply re-starting the jury selection process – which took weeks of preparation, three days of selection and involved nearly 600 juror summonses – would be hugely inconvenient and costly.

In the end, prosecutors chose to swear the jury, and the judge made clear it is essential they report for duty as ordered.

“There's no going back and getting other people that are potential jurors in the pool to come and take your place,” Daniel told them. “You are the jury, OK? And so your attendance next week is critically important to both the state and the defense and to the court.”

Kessler is charged with first degree murder in the 2018 disappearance and presumed death of Yulee hairstylist Joleen Cummings. She has pleaded not guilty.

First Coast News will livestream the trial gavel to gavel online and on the FCN app.


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