Gilbert v. Cupp

This is an appeal by petitioner from a denial of post-conviction relief. The petition alleges violations of state and federal constitutional rights occurring during his criminal trial and seeks to set aside his conviction and have the case remanded for retrial. ORS 138.520.

Petitioner was convicted of murder by a unanimous verdict of an 11-person jury. During trial one member of the original 12-person jury fainted and was excused. Petitioner’s attorney and the prosecutor agreed to try the case to the remaining 11 jurors. Petitioner’s conviction was affirmed on appeal in State v. Gilbert, 31 Or…