Ed. Note: This is a guest post by Madison, Wisconsin, criminal defense lawyer Christopher Van Wagner.
It has been a busy week for Court TV’s Managing Editor Cathy Russon at Law & Crime: she has dabbled in Tupac, Charlie Kirk, and now Lindsay Clancy. But she may be onto something in Clancy.
After the Clancy jury issued its second “deadlock” note to Judge William Sullivan, the judge finally relented and gave the frozen jury the notably soft-serve Massachusetts version of an Allen charge, dubbed Tuey-Rodriguez and commonly called the “dynamite” charge, by any criminal lawyer under 50 anyway. The Twittersphere exploded with cries of “enough punishment already” for this jury. The “coercion” or blasting cap language in that “try harder, please” instruction, you ask?
The verdict to which each juror agrees must … not [be] merely an acquiescence in the conclusions of other jurors…. in order to bring [12] minds to a unanimous result. You ought to give proper respect to each other’s opinions, and listen with an open mind to each other’s arguments … with an equal desire to arrive at the truth. (Italics added to show the horror.)
Let’s start with the fact that Massachusetts Jury Instruction 2.460, “When Jurors Cannot Agree,” is softer than the one used in most courts and far softer than the one still in use in some federal circuits. Yet L&C’s Russon remarked that while the judge may know that if this doesn’t move them to unanimity, then it is automatically a mistrial – the jurors themselves do not know that. Hence, muses Russon,
Twice they’ve told the judge they can’t come to an agreement. They’ve been told well… you have to continue. So now what if they sit around and stare at each other? …. At this point they might be arguing about the fact that they have to come up with a unanimous verdict or they’re never leaving.
It does feel that way when the entire country has already seemingly opined as to why the Clancy jury cannot reach unanimity. After all, this is the nation of gawkers who watched an eight-month trial against Orenthal James Simpson and were gifted a not-guilty verdict after only four hours of deliberations. The general public is nothing if not patient.
Ah, but neither Russon nor the other 4,256 Clancy trial talking heads seem to remember what took place 357 years ago this week in a London courtroom, in a jury trial against two Williams, Penn and Mead. Not a single one has mentioned Penn/Mead juror Edward Bushell, the original Steady Eddie. But the Clancy jury might have sympathized with Bushell. You see, in that noteworthy trial also involving a highly politicized cause célèbre (freedom of public religious assembly versus inadequate postpartum health care), the judge’s charge to the jury was a bit stronger.
Gentlemen, [by the law of the day only men could serve] you shall not be dismist till we have a Verdict, that the Court will accept; and you shall be locked up, without Meat, Drink, Fire and Tobacco; you shall not think thus to abuse the court; we will have a Verdict by the help of God, or you shall starve for it.
Conceivably, the Clancy jurors felt as if they were hearing the same basic message from Judge Sullivan after five days of deadlock, albeit the non-smoking vegetarians on the Clancy jury might not have thought Bushell’s plight so bad. And too, the Penn jury had been unanimous, but for acquittal, when the imperious Court wanted a unanimous guilty verdict. The Penn jury, like Clancy’s, returned thrice without the unanimous verdict the court demanded.
Shortly thereafter, they were all jailed until fines were paid. All but Bushell paid and scurried home; Bushell sat in a dungeon for a year while suing to establish the jury’s essential independence to agree or disagree on its verdict. So shed no tears for the Clancy jury, what with its nights at home with AC and WiFi and poke bowls, meatless or otherwise. It owes its nights at home and its morning lattes to Bushell.
But is Judge Sullivan really just employing today’s polite version of the London Court’s coercion? Is this the not-so-subtle push of the judicial system, in the person of the seemingly gentleman judge, to effectively coerce a dispositive outcome by changing the votes of jurors for no reason other than there being no other apparent end in sight, as Russon asks? It may be that the jurors were sent back into the deliberation room only to play cribbage until they outlasted the court and its push and shove mechanism.
The court wants an outcome and still the minority jurors hold fast to positions which prevent a dispositive one. Mind you, a hung jury is an outcome, just not the one the system favors as it lacks finality. Hence, in the view of some here, the “dynamite” instruction is slammed on top of an already relentless push to agree or return to that room as if it were Groundhog Day. And although the debate has already started in the Twittersphere as to whether the Commonwealth ought to or will try the case again, the fact of the matter remains that after five days, two deadlock notes and no hint of any end in sight, Russon may have nailed it. They may be reading the court’s three rebuffs much the same way the Penn judge wanted juror Bushell to read his comment about starvation, as the only alternative to a unanimous guilty verdict.
Many defense lawyers dislike the Allen charge in any form and for good reason. They, like most prosecutors, know the vote is usually already tipped the State’s way, so the prosecution likes the unsubtle pressure of the “try again for unanimity” orders. (For an historical reference point, ask Hurricane Carter about how many times the Commonwealth can try to do that.)
The Clancy jury must be seriously questioning their daytime “confinement” by now. They have deliberated for the better part of five days, failing to reach a unanimous decision. They told Judge Sullivan not once but twice (as of this writing, anyway) that they are deadlocked. And still they must trudge back and talk well past blue in the face. Notably for me, they have not asked a single legal or evidentiary question since day two of their work. Then again, they have meat and drink and, likely, fire and tobacco too. So is day 6 the day the dynamite charge’s coercion moves the vote of some one or two in the minority and does so for reasons other than conscientious consideration of the views of their fellow jurors? In my view, this one hangs in the end despite the dynamite charge, but only time will tell.