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THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE JURY’S REPEATED COMMUNICATIONS EXPLAINING THEY COULD NOT REACH A UNANIMOUS VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have ordered a mistrial after the jury’s repeated communications stating they could not reach a unanimous verdict:

The jury sent its third note regarding deadlock on the fourth day of deliberations, which not only stated that the jurors were “hopelessly deadlocked,” but also that “[a] unanimous decision would only be able to be achieved by the abandonment” of the jurors’ “firm . . . convictions,” and that “any change in their decisions would be untrue and unjust” … . Thus, the jury unequivocally informed the court that any unanimous verdict would be the result of jurors abandoning their genuine beliefs about the defendant’s guilt or innocence in order to achieve a unanimous verdict, which demonstrated that it would have served no purpose to provide additional instructions to the jury to continue deliberating … . Moreover, portions of the court’s instructions delivered after that note were potentially coercive, including the court’s statements that “some of you are locked into your positions and you’re fixed in those positions and inflexible and that’s contrary to what jurors have to do during jury deliberations,” and that “when you were selected as jurors you promised me that you would deliberate and discuss your views with your other jurors, so if you refuse to deliberate or close off your mind then you’re violating your promise and your oath to me” … . Notably, the jury returned a unanimous verdict later on the same day the court gave those instructions. Thus, under the circumstances, the court should have discharged the jury and declared a mistrial. People v Calixte, 2024 NY Slip Op 04079, Second Dept 7-31-24

Practice Point: Here the jury sent out three articulate and detailed notes explaining they could not reach a unanimous verdict. The judge should have declared a mistrial.

 

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