Duarte Law Firm
A Trial Attorney With 33 Years of Legal Experience and Over 200 Jury Trials


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Hung Jury

Last week, I tried a case where a client was accused of four crimes stemming from one auto accident. The charges included intoxication manslaughter and intoxication assault. The jury returned verdicts relatively quickly which acquitted our client of manslaughter and aggravated assault, but which convicted our client of intoxication assault and intoxication assault. The first phase of the trial is typically called the guilt-innocence phase of the trial because in this phase of the trial, a defendant is either found “guilty” or “not guilty” by the jury of the charge(s) alleged.

The guilty verdicts resulted in phase 2 of the trial - - the punishment phase. During this phase of the trial, the jury decides how a person is punished for the crime(s) which resulted in a guilty verdict. In any trial, and in our trial in particular, the main question involved whether prison time or probation was an appropriate sentence for an intoxicated person who was involved in “an accident” when the intoxication caused death to one person and serious bodily injury to a second person.

Whether to grant probation or not is a difficult question in many cases. This case was particularly difficult. An automobile “accident” is an event which occurs without an intent to cause harm. Someone did not see a stop sign, went out of their lane, drove straight while in a turn lane, etc. and erroneously caused a collision. The accident become a crime if the accident causes the accident.

So how does a jury punish someone for causing an accident while intoxicated? This jury faced the same questions our community asks when they hear about deadly collisions. Should a first time offender go to prison? Should probation be granted to someone who will likely never drink and drive again? Is someone punished enough by living each day knowing the person killed someone in an accident? Is prison really for evil, malicious or repeat offenders? Is probation really an option when someone takes a life?

As in society, or jury had mixed opinions and at the end of day three of deliberations, some jurors could not send a single mom to prison. Our client had no prior criminal history, had little experience drinking, left a family event with a passenger who felt she was sober and caused an accident where she admitted her responsibility for the accident. While on bond, our client complied with all conditions of bond, including the installation of an ignition interlock on her car. Those considerations left some jurors saying our client should be given probation. However, the accident did result in a death and in one person being seriously injured. Those facts left other jurors saying probation was not an option.

The jurors are instructed in every case to vote their consciences to reach a unanimous verdict. Every juror must agree to a sentence. If the jury cannot agree on a sentence, a mistrial must be declared. But how long does a jury deliberate? When is there enough discussion to warrant a mistrial?

After sending notes to the judge that the jury was at an “impasse,” the judge in our case sent a “Dynamite Charge” or an “Allen Charge” to the jury. The charge is an instruction to the jury advising them they should reexamine their views after considering the views of other jurors. If the jury cannot reach a verdict and a mistrial is declared, the jurors are told another jury will hear the same evidence and will need to return a verdict in a case that will not be any easier for the next jury. However, the jury was again instructed they were to vote their consciences and not change their votes on punishment simply to return a verdict. The jury was instructed they cannot compromise their positions by averaging everyone’s positions on a term or probation or a term of confinement. In other words, a jury cannot say everyone wants a certain sentence and divide the total number of recommended years by twelve to come up with a number of years to be served in prison or agree to probation.

The jury again returned to their deliberations and ultimately sent a note to the judge again indicating they were still at an impasse. The jury was instructed to continue deliberations and sent the final note - - the note that a judge must receive before declaring a mistrial. The final vote from the foreperson made clear what the prior notes did not say: “After examining and re-examining our opinions after considering the arguments raised by other jurors, no amount of time will result in this jury being able to return a unanimous verdict.”

Whether deliberations have taken an hour, a day or a week, a mistrial must be declared when a jury makes known to the court that a jury is hopelessly deadlocked. A court cannot force a jury to violate their consciences and violate their oath to “render a true verdict. With this final note in hand, the judge finally declared a mistrial on the punishment phase.

A new jury will be selected and this lawyer will again be fighting the good fight. I will do what is proper to show the jury that probation is appropriate in this type of case under this set of circumstances.

Araceli Duarte