Arguing that a court ruling substantially affects its ability to prosecute cases in Magistrate’s Court, the 7th Circuit Solicitor’s Office on Aug. 3 served notice it is appealing a Circuit Court decision that tossed a jury verdict in a DUI case on the grounds that a jury pool wasn’t big enough.

The decision by Circuit Court Judge Mark Hayes was based on an appeal of a Feb. 22 case in Cherokee County Magistrate’s Court during which a local man was convicted following a jury trial of driving under the influence.

Attorney Keith Kelly, of Spartanburg, who represented the man in the DUI case, had sought a continuance of the trial, arguing that the jury pool was too small to select a jury. Kelly argued that the jury pool in Magistrate’s Court had to have at least 40 people, but only 30 were present at the time of jury selection.

The magistrate presiding over the case, Bart Howell, denied the request for a continuance and noted in a written response to Kelly’s subsequent appeal that 75 people had been called for jury duty for the week of court — in keeping with state requirements to call at least 40 but no more than 100 jurors — and that neither the defense nor prosecuting attorneys exhausted the pool of available jurors when the six-member jury was selected for the DUI trial.

Judge Hayes, in an informal decision handed down on Aug. 2, noted: “The defendant contends failure to grant the continuance until sufficient number of potential jurors (40) could be assembled in accor- dance with (a specific section of state law on jury selection) was in error. The defendant asserts he is entitled to a new trial. After reviewing the applicable code sections concerning jury selection, the defendant is correct and is entitled to a new trial.”

Hayes noted that unless the parties consent by failing to object, names of potential jurors have to be drawn at random from the jury pool.

Though a formal order has not yet been filed, prosecutors served notice Aug. 3 they are appealing the decision.

Kelly did not return a call seeking additional information about the legal issues in the case. Assistant Solicitor Michael Morin, who filed the appeal, said he could not comment on a pending case. The judge’s ruling, if upheld, is not expected to affect older cases but would likely impact jury selections in future magistrate courts cases.