United States v. Turrietta, No. 11-2033 (10th Cir. 2012)
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A federal jury convicted Defendant-Appellant Gilbert Turrietta of assaulting a law enforcement officer. The jury reached its verdict despite having never been sworn. The problem would have gone unnoticed were it not for a belated objection from Defendant's attorney who knew from the outset of the trial that the jury had not been sworn. The attorney strategically reserved any objection until a guilty verdict was returned and the jury had
dispersed. "A verdict delivered by an unsworn jury may present an issue of constitutional dimension . . . [but] by lying behind the log," defense counsel failed to preserve the issue he wanted the Tenth Circuit Court of Appeals to decide. "Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection - at the very least, a forfeiture." Under the plain error doctrine, the Court concluded that it could not correct a forfeited error unless failing to do so would "cement" a clearly unjust result. Accordingly, the Court decided not to disturb the district court’s refusal to declare the jury’s verdict a nullity.
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