ALBANY -- Stop if you have heard this one before:

A woman is chosen for jury duty in a rape case. On the second day of the trial, she realizes ... she spotted the defendant committing the alleged crime.

Well, that is exactly what happened in Albany County Court on Tuesday when a juror informed Judge Thomas Breslin she witnessed 40-year-old Earl Berry on Sept. 21 with the alleged victim on Henry Johnson Boulevard.

As a result of the stunning revelation, the felony trial was declared a mistrial. And the woman, a registered nurse in her 40s identified as "Juror No. 8," is now expected to testify for Albany County prosecutors at the retrial.

"I was actually driving home and saw him dragging her down the bridge -- and he gave me the dirtiest look," the juror told the courtroom. "I said, 'Where is he going with this?' "

Breslin asked the juror if she told any other jurors what she had seen. She said she had not.

"You realize, obviously, you cannot continue as a juror?" Breslin told the woman.

"Absolutely," Juror No. 8 replied. "I don't want to."

Asked if he had ever seen such a set of circumstances in court, Michael Jurena, the attorney for Berry, replied, "In my 18 years of experience? No -- never."

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The defense lawyer fully expected Assistant District Attorney Carmen Warner, who is prosecuting the case, to call the woman as a witness.

Prosecutors allege Berry forcibly raped the 31-year-old woman on Sept. 5 on Lark Street after assaulting her with a telephone. They contend the second incident, which the juror allegedly witnessed, took place Sept. 21 near Sheridan Avenue.

If convicted of first-degree rape and felony assault, Berry faces at least 25 years in state prison.

The juror's revelation occurred during Albany Police Detective Mark Sauter's testimony. After the prosecution placed photos about the second incident into evidence, the juror realized she had spotted Berry before.

She told the court she recognized Berry because "he looks like my cousin."

Jurena asked for a mistrial. Prosecutors initially considered going through with the trial without using the juror as a witness, then decided against it.

Breslin granted Jurena's motion.

"I think it's the only fair thing to do," the judge said noting the bond between jurors would create an awkward situation. "One of your own is now testifying. I think it's unfair."

Jurena said he thought the trial was going well before the juror's revelation. Juror No. 8 would not have been a good juror for the defense, he acknowledged.

"You can't make this stuff up," he said.

Reach Robert Gavin at 434-2403 or rgavin@timesunion.com.