I'm fairly confident that what Justice Robie says in this opinion about both the applicable law and the existence of prejudice accurately states the existing doctrine.
But should it really be this way?
It's a murder case, and the various charges are first degree murder, second degree murder, and voluntary manslaughter. All the jurors agree it's not first degree murder, but they're split on whether it's second degree or merely voluntary manslaughter. Eight think it's second degree, but four think it's only voluntary manslaughter. They deliberate quite a bit, but still can't resolve the split.
So they talk about prospective punishment, which they're definitely not supposed to do. The murder jurors obviously want the guy to spend a lot of time in prison, whereas the manslaughter jurors don't think that's right. Regardless, all the jurors don't want the guy to walk; they all think he's committed a serious crime (e.g., wrongfully killing someone). They're worried that, maybe, if they hang, the guy will go free.
So the eight jurors compromise, and even though they think he's guilty of a more serious crime, they vote to acquit the guy on that count and convict him merely of voluntary manslaughter. All the jurors agree.
The Court of Appeal reverses the conviction and remands for a new trial on the manslaughter count.
Did the jury do wrong? Clearly. They're just supposed to find the facts, not consider punishment.
Did that error affect the verdict? Of course it did. Talking about punishment caused some jurors to change their minds.
Hence why Justice Robie reverses the conviction.
But here's the rub: Is that really prejudice? Did it really harm the defendant?
Sure, the (improper) consideration of punishment changed some of the juror's minds, but it did so in a way that -- at least facially -- only benefited the defendant: it got them off of voting to convict the guy of a more serious offense, second degree murder. That's a benefit, not a harm.
I understand that it simultaneously got them to vote guilty of voluntary manslaughter. But they were already on board for that. They already thought he was guilty of at least that offense; their only dispute is that they wanted him convicted of more. Not a single one of 'em was voting to acquit on voluntary manslaughter; with respect to that charge -- the charge for which he was ultimately convicted -- the discussion of punishment didn't affect their decision one iota. It simply got 'em to acquit on a different offense.
That's not prejudice. To the defendant, anyway.
Now, on some level, you might argue there's "prejudice" to the defendant because the compromise meant that the jury didn't hang, and the defendant might arguably prefer a hung jury to a conviction on voluntary manslaughter. But three things.
First, and least significantly, I'm not even sure the predicate is actually true. A totally hung jury would mean that the guy could potentially be convicted in a future trial of all of the charges, including but not limited to second degree murder. Seems like a defendant might well not want to take that risk.
Second, the alternative isn't really a hung jury on everything. The jury unanimously agrees, after all, that the defendant was guilty of (at least) voluntary manslaughter; they just disagree as to whether it's murder. So they can definitely, beyond a shadow of doubt, (1) unanimously convict on the voluntary manslaughter charge, and (2) declare themselves hung on the second degree murder count. That puts the defendant in much worse position than what the jury did here -- i.e., convict on manslaughter but acquit on second degree murder -- because the prosecution can presumably retry the guy on second degree murder if it wants with the manslaughter conviction already in hand. So what the jury did here doesn't exactly count as "prejudice" at all from that perspective; indeed, it's a fair piece better than the alternative.
Finally, doctrinally, I'm not at all confident that a compromise like this counts as "prejudice" any more than other types of split verdict that we're totally comfortable with. Take flatly inconsistent verdicts, for example. Let's say a jury decides that a defendant is guilty of Crime X but acquits on Crime Y, even though Crime Y is a foundational predicate of Crime X; i.e., both can't possibly be true. Is what the jury did a compromise verdict? Maybe; indeed, lots of times, we're pretty confident it is. Can the jury possibly have properly followed the law? Nope. They definitely did something wrong, because no way can you acquit on the one but convict on the other. But do we reverse the resulting conviction? Nope. We do not. We say that, yeah, the jury must have reached a middle ground, but that result benefits the defendant a little bit (the acquittal on Y) while hurting him a little (the conviction on X). No prejudice, so no reversal.
Same reasoning -- or at least result -- here, right?
Indeed, arguably, there's even less reason to find prejudice in the present case. Mr. Flores definitely got a benefit since he obtains an acquittal on second degree murder even though eight jurors though he was guilty. And arguably he didn't even lose anything because he was only convicted of an offense that all twelve jurors thought he had, indeed, committed.
Regardless, even if you count that last thing as prejudice, it's still a balance both ways; some benefit, some loss. We don't reverse for inconsistent verdicts that do the same thing. Why here.
(I'm not necessarily saying that what we do with inconsistent verdicts makes sense, or is good law. But the point is that this is the law, and if we do it there, why not here?)
One final point. When you look at the underlying impropriety, it's hard to see that the prejudice flows in the direction that Justice Robie assumes. Sure, they improperly talked about punishment, but they did so in order to convince the second degree murder folks to acquit on that defense -- hardly something about which the defendant could complain.
To prove the point, let's imagine a slightly different fact pattern, in which (as here) eight jurors want to convict of second degree murder, four jurors (as here) want to convict of voluntary manslaighter, and (as here) the jury improperly talks about punishment in its deliberation. The only variation is that in this hypothetical, the jurors talk about punishment -- again, improperly -- because the four jurors in favor of the lesser offense say that the punishment for second degree murder would be too severe, and on that basis convince the eight to convict only on voluntary manslaughter.
Does that impropriety prejudice the defendant? Of course not, it got 'em to acquit, not convict, even though the ultimate output is indeed a conviction on a particular charge (voluntary manslaughter). It seems inconceivable that we'd reverse that conviction by finding prejudice to the defendant.
Same here, no?
It's not that I disagree that prejudice is presumed. It simply seems like it's rebutted in situations in which, as here, everyone agrees that the impropriety resulted in (1) an acquittal on an offense that lots of jurors thought the guy was guilty of, and (2) a conviction in which all the jurors already thought the guy was guilty (and a portion of whom were merely hoping to convict on a greater offense).
The case that Justice Robie cites for prejudice in this context is People v. Hem, which indeed says that a retrial is better for the defendant than a conviction on a less serious offense. But in that case, unlike the present one, it was unclear whether all the jurors had already agreed on the lesser offense; there, the Court of Appeal reversed precisely because the trial judge didn't inquire at all into the nature of the deliberations. Here, by contrast, we know full well what happened; all the jurors already agreed on the lesser, and were only disputing (and compromised) the greater. That seems profoundly different to me.
The inequity here seems particularly striking due to the practical effects of the Court of Appeal's opinion. It permits the defendant to obtain the benefit of the jury's compromise -- i.e., its compromise acquittal on the second-degree murder charge (because there's now a Double Jeopardy bar to a retrial on that count) -- whereas not binding defendant to the detriment of that same compromise (i.e., conviction on the lesser count). With inconsistent verdicts, the law finds that result entirely untenable. Yet that's precisely what the Court of Appeal's holding here ensconces into law.
It's not that I like compromise verdicts any more than you do, or that I want juries to consider the degree of punishment in deciding whether someone's guilty. Since that's not the law we currently have, and I get it, so I'm on board for presuming prejudice and thinking carefully about reversing convictions when the jury's done something wrong.
I'm just not sure that these principles really apply in the present case. Even if that's indeed what the law says.
