At a criminal trial, the jury says that it's hopelessly deadlocked, and after some brief back-and-forth, the trial judge orders a mistrial and discharges the jury. A couple minutes later, the jury says "Wait. I think we might be able to reach a verdict after all. Can we keep deliberating?"
You're the defense attorney. Should you (1) agree to allow redeliberation, or (2) let the jury hang?
(It's a child molestation case, if that matters.)
To be clear, I'm asking for a strategic choice. On balance, if you've got a split jury (of unknown composition), are you better off having this jury attempt to reach a verdict, or are you better off with a hung jury and, presumably, a new trial with a different jury.
Defense lawyers out there: Which one would you want?
Prosecutors: Ditto for you. Which option enhances the overall probability that the defendant will be found guilty?
That's the exact issue in this case. Albeit in the guise of a habeas opinion, with the relevant deference attached to the state court judgment.
Because that's exactly what transpired here. The defense attorney confronted with this issue took 20 to 30 seconds to think about the issue and consult with his client, and in that split-second decision, elected to take a chance with the present jury. Which then promptly convicted his client on nearly all counts, resulting in essentially a life sentence.
Was that the right call or not? The majority says it might well have been right. The dissent says it was definitely wrong.
I'm positive that both the majority and the dissent are correct in part. The dissent's definitely right that it's a classic tenet of criminal defense work that you take a hung jury when you can get it. A plethora of smart treatises so state. And I'm quite positive that states the prevailing view, and one that's informed by lives in the trenches. So score those points for the dissent.
But I'm also certain that the majority's right that it's not always the right call to go with the hung jury, and that at least in some cases, it might be right to prefer further deliberation. After all, you've got at least one member of the currently-deadlocked jury in favor of acquittal. You can't be sure that you'll be able to say the same for your next jury. Maybe it makes sense to take your shot here, especially if your "gut" tells you this jury might be predisposed to acquit (e.g., that the split here in 10-2 in favor of acquittal).
All that's true. Which is just to say what's true vis-a-vis most factual propositions in the real world: They're shades of gray. There are very few truths that are always true in all situations.
But that begs the question: What's the typically right call. If, as here, you don't have any special information that differentiates your deadlocked jury from the usual deadlocked jury, what's the right call?
You've got some academic and empirical scholarship on this point, actually. Discussed by both the majority and the dissent. But the analysis of this scholarship is definitely superficial.
The dissent says (rightly) that this research demonstrates that most hung juries are tilted heavily in favor of conviction. This fact, the dissent argues, makes sticking with a hung jury generally a much preferred approach for the defendant, since if the already-conviction-prone jury redeliberates, it's very likely that they'll vote to convict -- e.g., move from 10-2 in favor of conviction to 12-0 in favor of conviction -- then radically shift and vote 12-0 to acquit.
I'm confident that's true. It's definitely true that most hung juries are hung heavily in favor of conviction. And I'm fairly certain that, as a result, if further deliberations in fact result in a verdict, most likely, that verdict's going to be a guilty verdict.
But the majority has a response. One that's also largely right. Yes, it's true, this deadlocked jury is (statistically) likely to be in favor of conviction, and hence if it successfully deliberates further is (statistically) likely to convict. But it's also true that, statistically, a huge majority of juries vote to convict anyway. So, the majority argues, if 98 percent (or whatever) of juries are going to convict anyway -- presumably including your new jury on a retrial -- the fact that 90 percent (or whatever) of currently deadlocked juries will vote to convict doesn't matter. You should still take your shot with the present jury, because a 90 percent chance to conviction is better than a 98 percent chance.
Again, at some level, that's statistically true as well. But it also compares apples to oranges.
The relevant question is not, as the majority puts it, what a new jury in a typical case is statistically likely to do. That's the apple. The actually relevant question is instead what a new jury in a case in which we already know that some actual jurors in a prior case wanted to acquit would do. Cases in which, in a prior trial, the jury was deadlocked are, as a group, unquestionably weaker cases. Yes, most cases result in convictions. But the group we're talking about here -- the oranges -- are not your run-of-the-mill cases in which the evidence is overwhelming and guilt essentially preordained, but are instead cases (like the one here) where the evidence for the prosecution is much weaker and has a variety of holes (e.g., as here, come exclusively from child witnesses whose statements are often internally contradictory). What's the conviction rate in those types of cases? Cases in which, in a prior trial, the jury was deadlocked?
That's the relevant data point. One that neither the majority nor dissent isolates. Yes, we may be able to say that 10-2 guilt cases typically result (e.g., 90% of the time) in a guilty verdict in the event of a successful redeliberation. But if cases that previously hung 10-2 result in a conviction only 80% of the time, then the old saw about taking a hung jury whenever you can makes sense. You're better off with a new jury -- notwithstanding everything the majority says here about the prosecution learning from its prior mistakes, the defendant's strategy at the prior trial, etc. -- because that gives you the best chance at an acquittal.
There are some ancillary points as well that the dissent rightly makes that argue for accepting the hung jury wholly apart from the statistical likelihood of ultimate acquittal. For one thing, the dissent notes that a retrial isn't even necessarily certain. True enough. Now, here, I think there was little doubt that the prosecution would have retried the guy in the even the jury hung. But maybe not if the vote was something like 10-2 to acquit. (Which may demonstrate that even if you've got some reason to believe that the current jury might be in your favor, you might still elect to go with the hung jury.)
Even more persuasive, in my view, is the dissent's point that the defendant here (like many, but not all, defendants) was out on bail. At the very least, taking the hung jury gives him another six months or so of freedom while they empanel and try to the new jury. That you know for sure. Yeah, maybe it's true that, statistically, the guy's likely to be convicted anyway and sent to prison for life. But even if you know that for sure, okay, get your six months. Maybe you find new evidence. Maybe you die of natural causes and the whole thing is moot. Maybe, yeah, you end up going to prison, but at least you had those six months of freedom that you wouldn't have otherwise had. Are those six months totally awesome ones, given that you've got a criminal trial hanging over your head? Probably not, honestly. But those six months of encumbered freedom are better than six months in prison. That I can promise. I'll take that trade every single time.
So it's an interesting issue about what the right "rule" actually is: Take the hung jury or not? It's one that I think has an answer in a typical case. But that answer isn't particularly spelled out by the type of analysis in today's opinion.
Which is too bad. 'Cause I'd like to know the answer. Even though I suspect it's the one that the dissent rightly points out is the one adopted by the relevant practitioners: Take the hung jury.
