The recent Cosby trial got me thinking about judges forcing juries back to discussions when the jury is hung.
Factual question: Is there a point at which the judge can no longer tell a jury ‘Keep working until you have a verdict’?
The reason I ask is that it seems to me at some point a judge keeping a jury enpaneled until a verdict is reached would be very coercive. Along the lines of ‘Well, the jury was hung but the judge kept the jurors for a year until the last hold out changed his vote to guilty because , holy crap, a year!’.
I would think that a situation like that would be fertile grounds for appeals. But then again, I am not a law talking type.
And yes, criminal defense attorneys, like me, believe that such charges are inherently coercive at the first instance. Even in the states that allow them, I don’t believe that any state would allow a second reading of it.
I used to be surprised when judges do that; now it makes me think that the judge may see an obvious verdict.
Here’s why: when I was on a jury, there was really no obvious verdict. It came down to whether or not you believed two witnesses, one of whom was the victim, who was a terrible witness, and who had changed his story a couple of times in the past. The other was a confessed accomplice who was testifying for a deal. And the victim wasn’t sure how many people were there. He thought there was one at first, and thought there might have been three by the end, but the defendant was definitely there.
The jury ended up hung, and the judge accepted it. But here’s the thing: when we reached the six hour mark at deliberations, the judge sent the bailiff in actually to ask us if we were hung. We we split, I think 4/8, but were still willing to talk.
So I think the judge expected a hung jury all along. The county prosecution, FWIW, was young and terrible. The defense attorney ate him for a snack, and didn’t even put on a case, just cross-examined.
So, whenever I hear that a judge has sent a jury back, I suspect that the judge thinks the verdict ought to be blindingly obvious, there is probably one idiot hold-out, and the judge doesn’t think it would be a miscarriage for that one person to decide he (or she) just wants to go home, and gives in.
I am not saying this is right, and I am not prepared to defend this action; I am just saying I think it happens sometimes.
I have not been following the Cosby case close enough to speculate on what verdict the judge might have thought was obvious.
Why the assumption that the holdout is otherwise leaning for the defense? To take the Cosby case as an example, I don’t think we know what the vote was, do we? In other words, it might have been 11-1 to acquit, such that if the holdout had switched, Cosby would be out of jeopardy today.
Maybe it’s just my circle of friends, but if I asked 12 of them how they lean based solely on what they’ve seen on the news, the vote would be 12-0 to convict.
The assumption is because of the difference in outcomes for the defendant.
If the hold out is on the guilty side and there is coerced into voting not guilty, the defendant doesn’t go to jail. If the hold out is on the not guilty side and is coerced into voting guilty, then the defendant goes to jail. In the first case, the defendant might have to go to trial again but the defendant isn’t punished.
If you believe that juries should vote based on their honest belief regarding the evidence and that anything else is unfair to the defendant, then coercion is a bad thing.
This other current thread http://boards.straightdope.com/sdmb/showthread.php?t=828879 asks essentially the same question from a slightly different perspective. The current last post, #32 by Procrustus, is especially on-point for this thread.
I’m simply pointing out that the risk is not wholly one-sided; your position runs the risk of putting the defendant at risk a second time, when an Allen charge might have set him free. Most of the time a defense attorney is going to accept that possibility as the price of avoiding the risk of a conviction, but it exists.
And I would say “unfair to the interests of justice,” rather than “unfair to the defendant,” but sure. The question around an Allen charge is whether being asked to think seriously about whether you might be wrong is coercive.
I don’t know what the judge thought, but that’s reasonable doubt. It’s reasonable to think that possibly the victim and the accomplice were mistaken or lying, given their testimony. If there’s no other definite, objective evidence tying the defendant to the crime, then it is a reasonable doubt to conclude “maybe the defendant wasn’t there”. It would be an unreasonable doubt if, say, we had a video recording of the defendant being there. Or several law enforcement officers witnessed him being there as well as the other witnesses, and when they arrested him, he had the smoking gun in his hands. And so on and so forth.
Which is why I suspect that the judge in my case was rolling out the red carpet for a hung jury. He gave us the chance to be unanimously “guilty” right off the bat, an after that, really didn’t seem to want us to bring in a verdict.
He even came in personally after the mistrial had been declared and asked us whether we thought there was any point in scheduling a retrial.
That’s also why I think when the judge sends a deadlocked jury back, the judge thinks the verdict must be obvious.
IANAL, but I am related to several, and I have seen a few trials; it just is my impression that some verdicts are more obvious than others.