The jury has been out for the better part of two days now. They are considering four charges: murder, attempted murder, assault in the first degree and criminal possession of a firearm. My client was involved in an argument that turned deadly in the kitchen of his home with his common-law wife and two of her girlfriends. He shot one women and then turned the gun on a second, shooting her twice.
At the close of business yesterday, the jury reported that they are deadlocked on two charges and that no further deliberations were likely to result in a change. Little does the jury know that their real work begins now.
It is customary in cases such as these for the court to instruct the jury to keep deliberating, to heed the honestly held views of others, and to work together. The so-called Allen charge in federal courts is an invitation to reconsider; under state law in Connecticut we call it the Chip Smith charge.
During voir dire we were careful to explain to jurors their rights. And today that explanation may matter. "Do you understand that no one in this courthouse, and that includes the judge, can ask you to change your vote simply for the sake of a unanimous verdict?" Each juror said they understood.
We are hopeful on the defense side of the aisle. We all but conceded the criminal possession count. My client fired a pistol at two women he thought were attacking him. He is a convicted felon. Felons can't have guns. There isn't much to argue about and nullification is a gift we did not ask for, not when we were asking jurors for so much already: We asked them to conclude our client was justified in killing. That is a hard, hard thing for a juror to do. We know that.
If jurors have decided two of the four counts, but are not able to agree on two, we hope it means that they have acquitted on the murder and convicted on criminal possession. Nothing else makes sense. The first shot was the killing shot. If the jury concluded the murder was unjustified it would seem simple for them to conclude that the second victim's shooting was unjustified as well.
We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by delivering the Chip Smith charge. I am glad I am not a juror.