further deliberations would be helpful instead of polling the jury individually or as a group. The following is the approved instruction for the District of Columbia for unanimity of verdict and the election of the foreperson which was given to the jury in Trial 2:
Upon retiring to the jury room, you will select one from among your number to act as foreperson. The foreperson will preside over your deliberations, and will be your spokesperson before the Court in the event there is any matter about which you wish to communicate with the Court.
The verdicts must represent the considered judgment of each juror. In order to return [a] verdicts, it is necessary that each juror agree to the verdicts. Your verdicts must be unanimous.
Crim. Jury Instruction 2.69 (3d Ed.).
The trial judge in Trial 2 did inquire of the foreperson and was told that further deliberation would not be helpful. A poll of the jury in open court prior to the declaration of a mistrial would have been questionable but perhaps desirable, but only on the narrow issue of whether or not each juror agreed with the foreperson as to the futility of further deliberation. The risk with such a poll is that some jurors may feel that their positions on guilt or innocence and the secrecy of their deliberations are being compromised. Furthermore, polls of the jury are dangerous since responses about the numerical division of the jury have been held to be error per se under United States v. Amaya, 509 F.2d 8 (5th Cir. 1975). This rule is designed to prevent coerced verdicts. United States v. Gordy, 526 F.2d 631, 636 n.2 (5th Cir. 1976).
In any event, since there was no objection from counsel, no outward manifestation of disagreement from any of the jurors, and the strong presumption and previous instruction of the Court that a jury speaks through its foreperson, the Court was justified in taking the foreperson's word that his note represented the collective opinion of the jury.
The length of the jury's deliberations and the length of the trial are nebulous factors at best in the Arnold analysis. In this case, the jury had deliberated for approximately six hours on a case that took three and one-half days to try. There are no bright lines here. Six hours is certainly a reasonable deliberation period for a short trial.
The next factor is related to the lengths of trial and deliberation; the complexity of the issues presented to the jury is really much more determinative. In this case, the only issue was whether or not the defendant was in possession of the contraband. There were only four witnesses. This was not a complex trial or a difficult issue by any means.
As to proper communications with the jury, the judge had six such notes during their six hours of deliberations. Three were substantive, two were not and the sixth was an indication, clearly stated, that the jury was unable to reach a unanimous decision. From this correspondence and the subsequent responses to the Court, the trial judge could see that the jury was struggling with the case. However, the most compelling correspondence of all was the final note that stated, in no uncertain terms, that "the jury is unable to reach a decision (unanimous)." When the foreperson reiterated this sentiment on the record and in open court, the judge was justified in concluding that the jury was hung.
Finally, the effect of exhaustion and the impact which coercion of further deliberations might have on the verdict is a difficult standard to apply from a cold record. As previously stated, the suggestions that a good night's sleep and a fresh approach would help deliberations or that another jury would have to decide the case have been held to be coercive. United States v. Thomas, supra. In light of each of the foregoing factors falling on the side of declaring a mistrial and avoidance of coercion, the decision was inevitable.
In the cases cited by the defendant where the judge, on his own motion, declared a mistrial that was held to bar retrial, there are distinguishing facts. In United States v. Gordy, 526 F.2d 631 at 633-34, there was a pronounced hurried atmosphere about the trial (the judge was trying to catch a plane) and the judge asked the foreman after 5 1/2 hours of deliberations if there was a "hung jury." The foreman said that there was a unanimous not guilty verdict on one charge and a 6-6 split on another. Thereupon, a mistrial was declared as to the count on which the jury was split.
Nothing in a general sense about the case at bar could be characterized as rushed. In addition, the trial judge here did not ask the foreman if there was a "hung jury." Instead he asked, more properly, whether further deliberations would be helpful. In Gordy the jury had one verdict in hand of not guilty, and an impasse on another count. Such was not the case here, the judge did not initiate the idea of a hung jury.
The case United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir. 1975), involved a trial judge's calling in the jury after 6 1/2 hours of deliberation and without any indication from the jury that they were unable to agree, asking the foreman whether the jury could arrive at a unanimous verdict. A mistrial was declared when the foreman indicated that a unanimous verdict could not be reached. "The impetus for [the] mistrial was provided solely by the judge rather than by the jurors." Id. at 1043.
By contrast the trial judge in the case at bar did have a clear indication from the jury that they could not agree from the note that was sent. The impetus clearly came from the jury and not from the judge.
Finally, in United States ex rel. Russo v. Superior Court, 483 F.2d at 11, the trial judge, without any warning to counsel, called the jury in after 15 hours of deliberation in a murder trial, and asked the forelady whether the jury had arrived at a unanimous verdict. The forelady responded, "Not yet." Whereupon, the trial judge declared a mistrial after deciding that the jury was too exhausted to continue.
Russo is further distinguishable on the ground that in Trial 2 the jury foreman was unequivocal in saying that no further jury deliberations would be helpful. "Not yet" implies that further deliberations would in fact yield a verdict. Furthermore, the judge in Russo did not have any indication from the jury that it was deadlocked prior to his colloquy with the forelady. In this case the judge had a note from the jury before going into court saying that it was unable to reach a unanimous agreement.
The defendant's motion for dismissal on double jeopardy grounds is denied. A mistrial was declared properly in both of the defendant's previous trials of this matter. When the Court learned from the foreman that the jury was deadlocked and that further deliberation would not be helpful, the circumstances constituted manifest necessity. While it is clearly a waste of resources, both judicial and prosecutorial, to try an accused a third time, it is also physically, emotionally and financially a strain on the accused. But the double jeopardy provision of the fifth amendment, however, as the Supreme Court said in Wade, supra, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.
Date: November 5, 1991
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 781 F. Supp. 1.
ORDER - November 6, 1991, Filed
Upon consideration of defendant's motion to dismiss the indictmenton the ground of double jeopardy, the opposition thereto, the arguments of counsel in open court, and for the reasons stated in the accompanying memorandum, it is by the Court this 5th day of November, 1991,
ORDERED that defendant's motion to dismiss be, and hereby is, denied.
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