Defendant's disadvantage

Some say forcing juries to deliberate after stalemate puts power in hands of majority over holdouts

BY STACEY ALTHERR | Newsday Staff Writer

October 17, 2006

Juries are often ready to give up too soon, judges believe.

When that happens, the U.S. Supreme Court allows a judge to ask a jury to continue deliberating, even after they have said they can't reach a consensus. Many times, judges say that it's too early to reach a decision or mention the time and expense already incurred by the trial.

Often, juries will come back later with a decision, although sometimes, as most recently seen in the John Gotti Jr. case, the jury never does come back with a verdict. Law experts differ on how the decision to send the jury back into the deliberation room affects the final outcome.

Some question the fairness to the defendant and the jury.

"There is a pro-prosecution bias because of the willingness of courts to pressure juries to reach an agreement," said Eric M. Freedman, professor of constitutional law at Hofstra University. "It only takes one holdout juror to [prevent a conviction] and therefore, structurally, any system that puts pressure on the minority to agree to the view of the majority works against the defendant."

Touro Law Center Professor Richard Klein agreed that it can sway jurors feeling pressure to hold onto their views.

"The reason why jurors come back [with a verdict] ... is not because they weren't deadlocked, but that they feel chastised by the judge," he said, adding that it can change the dynamics inside the jury room, too. "It gives power to the majority to put pressure on the minority, the holdouts," Klein said.

But Bruce Barket, a criminal defense lawyer who said he believes a murder conviction is a "steep hill" in this case, questioned whether asking the jury to continue deliberating means a conviction. "Actually, I've had them say they are deadlocked, and [then] I've had them acquit, I've had them convict, and I've had them hang," he said.

Klein said judges seek verdicts to resolve cases.

"Judges are expected to deliver," said Klein. "Judges don't like to utter the word 'mistrial' and that is what they must do if the jury doesn't reach a verdict."