May
07

Why A Second Trial?

“Thanks,” I replied. “But I am not so sure. We’ve got to try it all over again in October.”

My client stands accused by the United States government of possession and distribution of various quantities of crack cocaine and powder cocaine. He’s also accused of illegal possession of various guns and ammunition. Seven counts in all. Given his criminal history, he’ll spend more than 20 years in prison if convicted. Even if he were inclined to plea bargain — and he’s not — he faces a mandatory minimum of a decade behind bars.

So, I suppose it was a victory to walk him out the door after a weeklong trial and more than two days of jury deliberations. The case ended in a mistrial when jurors reported that they could not reach a unanimous verdict as to any count.

Some part of me wonders why we have to return to court at all, ever.

Four propositions are central in a federal criminal trial.

First, a defendant is presumed innocent. Jurors are told that the presumption of innocence alone is sufficient to win an acquittal.

Next, the government bears the entire burden of proof. A defendant need prove nothing at all.

Third, the government must prove its case beyond a reasonable doubt, the law’s highest standard. The standard is so high that if jurors can conceive of a reasonable explanation of events consistent with innocence, they are required to render a verdict of not guilty.

Finally, all 12 jurors must agree in order to reach a verdict — the unanimity requirement.

I understand these propositions. What I don’t understand is why the courts fail to take them seriously.

Brittany Paz and I tried the client’s case in Hartford. The case went to the jury on a Friday afternoon. At the close of the court day on Monday, jurors sent out a note. They were unable to agree on any of the counts the government charged. In other words, the government had failed to meet its burden of proof.

That should have ended the case right there, but it did not. The next morning, the judge read the jurors what lawyers call the “Allen charge,” the federal equivalent of what is known as the “Chip Smith” charge in Connecticut. Both jury instructions take their name from that of the defendants in whose cases the instructions’ use were upheld by an appellate court.

Sometimes known as “dynamite instructions,” these jury charges are intended to blast jurors out of their logjam. The hope is that jurors will reconsider their initial views, and, if they can do so in good conscience, reach a unanimous verdict.

I understand the judicial imperative to give the dynamite charge. A failed trial, a trial in which no verdict is reached, results in a mistrial. A defendant can be, and often is, tried again without violation of the double jeopardy clauses of the state and federal constitutions. In other words, failure to reach a unanimous verdict is the judicial equivalent of time wasted. No one likes to waste time.

But I was surprised to hear the judge tell jurors the following: “This case is important to the government. And it is equally important to [the defendant]. It is, therefore, in the best interests of all parties for you to reach a verdict if that can be done without any juror surrendering a conscientiously held view.”

Say what?

“Judge, we object to the language about it being in the defendant’s best interest to reach a verdict. There are three possible outcomes in this case: a conviction, an acquittal and a mistrial. Frankly, a mistrial is also in my client’s interest,” I sad.

“You have preserved a record for appeal,” the judge said, which is judicial speak for “I hear you, but I disagree.” The objection was over-ruled and the language was read to the jury.

Never being one to walk away from a fight with unbruised knuckles, I then asked for a judgment of acquittal.

“Judge, the jury has been told it is the government’s burden to prove its allegations. The jury has also been told that its verdict must be unanimous. They have been told we needn’t prove a thing and that the presumption of innocence is sufficient for a defense. We want to rely on what you told them and ask you to dismiss the case.”

Why not? If the government fails, we win. The government failed to persuade all 12 jurors, thus not satisfying the unanimity requirement. If we needed prove a thing, why is it that the defense only wins if all 12 agree on a proposition we have to burden to prove — that the defendant is not guilty?

I don’t know what the division was among members of the jury. Assume it was 11-1 in favor of conviction. In such a case, the government has failed to meet its burden of proof, at least in the eyes of one juror. If unanimity is required, and the defendant truly does not need to prove a thing, why not dismiss?

The answer is, as are so many things, in the form of the question posed. If a verdict requires unanimity, then the failure of a jury to reach a verdict unanimously means no verdict. The absence of a verdict means no judgment can enter, and the case remains alive.

Perhaps we ought simply to do away with the requirement that jurors vote either “guilty” or “not guilty.” The requirement builds a redundancy into the deliberation process that benefits only the government.

There is no constitutional limit on the number of times the government can try to convict a defendant after a mistrial, although most lawyers who think about such things think that three trials is close to the limit. Eugene Bontatibus of Branford was tried three times, accused of arson when his business went up in flames. The state finally quit after torturing this man through three trials.

One trial ought to be enough for any man. If the government can’t prove its case the first time, it ought not to get a second bite at the apple. If we were serious about the presumption of innocence, defendants would win when jurors can’t agree.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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www.normpattis.com
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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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