dissenting.
The majority holds that court system negligence,1 i.e., a failure to exercise due care in summoning for trial in a remote village a jury panel sufficiently numerous to ensure that a jury of twelve persons would be selected (despite a predictably large number of challenges for cause and the standard large number of available peremptory challenges), invalidates a subsequent trial where the defendant waives a jury of twelve and proceeds to trial with a jury of seven persons chosen from the area in which the crime occurred. The majority relies upon Alvarado v. State, 486 P.2d 891, 905 (Alaska 1971), AS 22.10.030, and Criminal Rule 18.1. I believe this reliance is misplaced for two reasons. First, the ease, the statute, and the criminal rule deal primarily with the location of trial. Here, the place of trial was scheduled for Fort Yukon and the parties stipulated to shift it to Fairbanks. It is clear that the stipulation was reached prior to any difficulties arising with regard to the adequacy of the jury panel. Thus, defendant cannot complain about the place of trial. In any event, the stipulation was rescinded and the case was tried in Fort Yukon. Second, to the extent that Alvarado, the statute and the rule relate to jury selection at all, they seek to obtain a jury of residents from the vicinity in which the crime occurred. Here, all seven members of the jury which convicted Erick were drawn from the vicinity, and Erick makes no specific objection to any member of that jury. Thus, I conclude this decision cannot rest on Alvarado and the statute and rule enacted to implement it.
*828Further, even if we assume that the statute and rule do relate to jury selection, then they would be in para materia with, and I suggest governed by, AS 9.20.040 which requires only substantial compliance and not a freedom from negligence in jury selection procedures. See Tugatuk v. State, 626 P.2d 95, 98-99 (Alaska 1981).
AS 9.20.040 was originally enacted as part of the 1917 Alaska Session Laws, ch. 59, § 3, see Hauptman v. United States, 43 F.2d 86, 88 (9th Cir. 1930), and was codified as § 55-7-31 ACLA 1949.2 It required strict compliance on pain of reversal. The ninth circuit refused to literally follow it in either Hauptman or the later case of Holl-man v. Brady, 233 F.2d 877 (9th Cir. 1956). In Hauptman, the court established a rule which required a failure of substantial compliance with the jury selection procedures amounting to bad faith and substantial prejudice to the defendant before it would reverse. Mere negligence was not enough. Hauptman v. United States, 43 F.2d at 89. These requirements, (1) failure of substantial compliance, and (2) resulting prejudice, were incorporated into the act in the 1962 codification, indicating legislative approval of the ninth circuit’s interpretation of the predecessor statute. See AS 9.20.040. Given this history of AS 9.20.040, mere negligence by court clerical personnel in the jury selection procedure cannot warrant a reversal.
Finally, while the question is close, I do not believe that this record requires a finding that Erick’s waiver of a jury of twelve was invalid because it was not knowing, intelligent, and voluntary. See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978). While Erick clearly went through the motions of a personal waiver, I recognize that he may have done so faced with the kind of Hobson’s choice condemned in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cert, denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). While mere negligence by the court system employees in failing to produce an adequate panel would not, in my opinion, violate AS 9.20.040, it might invalidate a consent to proceed with a jury of less than twelve in a felony criminal proceeding. This issue, however, was not raised below at the time of the purported waiver, and despite a remand for an evidentiary hearing, was not brought to the trial court’s attention thereafter. Finally, it has not been argued in this court.
. While I cannot place responsibility on a specific court employee, I accept arguendo with some hesitancy (since the issue is one of fact and the trial court’s findings are to the contrary) the majority’s conclusion that the breakdown in communications between the court system’s central staff and its agents in the field constituted negligence which prejudiced Erick. Compare Zerbe v. State, 578 P.2d 597 (Alaska 1978). I assume, under the circumstances, the test of prejudice requires a lesser showing than would be required for a finding of proximate cause in a civil case. Compare Maddocks v. Bennett, 456 P.2d 453, 459-61 (Alaska 1969).
. Section 55-7-31 provides:
Compliance with Statute. No case, either civil or criminal, shall be tried in any of the Courts of the Territory of Alaska, except in accordance with the provisions of this Act, and any violation of the provisions of this Act is hereby declared to be reversible. Provided, however, that in any civil or criminal case, by consent and agreement of the parties given in person and by and through their
attorneys, and made in writing and signed and filed in the case, a jury shall be drawn or selected in any manner upon which the parties may so agree, and such jury, so drawn and selected under appropriate order of the Court made in conformity with such agreement, shall be deemed a legal jury, and such drawing or selection shall not be deemed a violation of this Act.