In my case, should I have done a better job in voire dire to dig the information out of the juror who would not vote guilty? Maybe. Don't know that I would have ever known to ask a potential juror if she believed that the job of rendering judgment was solely within God's province, or if we mere mortals were allowed to do such things... Frankly, I don't know that any judge I've been before would allow me to ask religious based questions out of respect for the rights (and privacy) or potential jurors.
Oh, boy, I wish you'd IDed yourself as being the Prosecutor involved; I wouldn't have been so sharp-cornered about it. I apologize.
However, yours still seems to be an outlying case. I thought it was routine for someone, Judge or the attorneys, to ask if there was any reason the prospective juror could not render a fair opinion under the law --without delving into religious aspects. In that case, I would put the shortfall on the juror.
Simply, if she had been asked that, she would have been lying if she said no. If she had told the truth ("yes"), she would have been rejected. I did offer this as a possibility in my previous post. (I have a funny story about that if anyone's interested.)
Here's the thing with a hung jury. When the judge gets wind of the jury being hung up, they will call the jury in and give them an instruction called the Allen charge. Basically it's when a judge encourages a jury to reach a verdict. It ranges from very mild encouragement, to the one's trial lawyers call a "dynamite charge" in which a judge will essentially order the jury to make a decision (not in so many words, but in tone of voice). If after the Allen charge a jury is still hung, as a prosecutor I would absolutely want to know the number of jurors each way, and to talk to the jurors if possible. It would let me know (as in my case) if it was one person holding up the verdict for illogical reasons, if it was close, or if it was not even close. Just as in my case where it was 11-1 for conviction, I've also seen situations where it was 9-3 or 10-2 for acquittal. If you're the prosecutor and hear that, you damn well better recognize that you're done.
I don't know what to say about that. Under my theory of "a hung jury constitutes reasonable doubt on the face of it," I don't think juries should be polled at all. After all, their deliberations are assumed to be secret, are they not? If so, then no post-deliberation questions should be asked of any of them... nor should they be allowed to discuss their decision-making process after the fact... "book deals" or no "book deals."
The case you iterated still seems to be an outlier to me, and under the notion that it's better for ten guilty to go free than one innocent to be punished, that should have been it, period, in the first trial, and "The defendant is free to go."
Yes, he can "do it again," if released, but the hope is that if he is a repeater, sooner or later he will be caught again and prosecuted again, hopefully with stronger "12 to 0" evidence.
An aside, the defendant in my case sued me from prison for $115,000,000 for wrongful prosecution. I was able to get the case thrown out, but the filing of the suit cost my wife and I our first choice of houses because the bank withdrew approval for the mortgage when they learned about the lawsuit. He refiled in federal court, alleging a civil rights violation based on racial discrimination. He lost that one as well because the victim of the burglary was also an African American.
I'm really sorry to hear that, and I hate to be a prick about it, but that
would not have happened if he had been released under the first (hung) jury's decision --however bad it would have been under some kind of omniscient "Cosmic Supervision."
I remain intransigent about my opinion that hung juries are automatically "not guilty" decisions.... again, since "reasonable doubt" has obviously been achieved by the defense.Terry, 230RN
