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O’Mara Law Group is the private law practice of Mark O’Mara. Mark O’Mara has been practicing law in Central Florida since 1983.

A Mistrial Doesn't Mean a Miscarriage of Justice

Mark O'Mara - Thursday, December 17, 2015

 

The judge in the Freddie Gray trial seemed hell-bent on getting a verdict out of the jury.

 

It’s no wonder why. Protests erupted in the wake of Freddie Gray’s death. Now, the city stands poised for more unrest pending the jury’s decision in the case of William G. Porter -- who stands accused of involuntary manslaughter, among other charges.

 

A decisive verdict might have been in the best interests of the city, but would it be in the best interests of justice?

 

Sometimes jurors don’t agree. When they cannot come to a decision, we call that a mistrial -- but that shouldn’t be confused with a miscarriage of justice. Each juror decides on his or her own what witnesses they find credible, which experts to believe, and the value of the evidence. With so many factors at play, reasonable people can honestly reach different conclusions.

 

The real miscarriage of justice would be if honest jurors changed their opinion just because pressure or circumstance demanded a consensus.

Generally, as deliberations drag on, tempers flare. People can become entrenched in their opinions, and they may start to lose patience. The holidays are upon us. Christmas is around the corner. People want to be with their families, not stuck in a deliberation room.

 

How would you feel if you were sent to jail because a juror who believed in your innocence simply got tired of fighting? That’s not how our system is meant to work.

 

The concept of a judge instructing hung jury to resume deliberations is called an Allen Charge, named after an 1896 Supreme Court decision. It states that judges can demand juries to work harder to reach a consensus. The Supreme Court decision, however, doesn’t require judges to issue Allen Charges, and each state has its own rules regarding the application of the charge. Many states reject the concept -- in whole or in part. In Florida, where I practice, it would be extraordinarily unusual to see a judge send a hung jury back into deliberations more than once.

 

At a certain point, a judicial demand that a verdict be made may be determined inappropriate. A jury is told to use their best efforts to come to a verdict, but there are simply those cases where a jury cannot arrive at a proper and appropriate legal verdict. The are, and should be, allowed to tell us that -- without undue pressure and without fear of reprisal.

 

We give juries great responsibility. We must allow them to discharge that responsibility as they see fit under the law. Keeping a jury in a deliberation room after they have said, for a third time, that they cannot reach a verdict might be likened to a police officer keeping a suspect in an interrogation room until he confesses. Such a confession would be suspect, and likewise, such a verdict would have been suspect.

 

Sometimes no verdict is the right verdict -- the just verdict. If the state didn’t meet their burden and failed to convince all jurors of guilt beyond a reasonable doubt, then a mistrial IS justice.

 

In Porter’s case, prosecutor Marilyn Mosby rushed to charge these officers quickly -- in a matter of days -- and she received criticism that the prosecution was designed to assuage social unrest. If that’s true, perhaps the warped motive and political pressure affected the strength of the state’s case.

 

In the United States, we would rather let a guilty man go free than send an innocent man to jail. It’s the foundation of the presumption of innocence, and it’s a fundamental part of our concept of “freedom and justice for all.” The concept of declaring a mistrial when there is a hung jury is part of how we prevent injustice.

With the hung jury, remember that it’s not the final word. Prosecutors can try again, and they may get a different result. A mistrial is not justice denied; it is justice deferred until there can be justice assured.

 


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