When 11 is not enough

Last week, in U.S. v. Curbelo, the Fourth Circuit in an opinion by Judge King joined by Motz with Chief Judge Wilkins dissenting overruled the defendant's conviction, concluding that the trial judge was in error to proceed with 11 jurors. The Government and the Chief Judge were of the view that it was (or at least could have been) harmless error, but the majority concluded that "[e]very court to have addressed the question has held to the contrary, and we decline to deviate from this consensus."