Half of 2022 Mistrials Result from Hung Juries

When a jury trial begins, whether it will reach a conclusion is anyone’s guess. 

A defendant has the right to bring their case before a judge or a jury to determine whether there’s guilt in connection to the crime. However, between the beginning and the end of a trial is a field of hurdles and it only takes one step to derail the process, which can result in a mistrial.

While some recent mistrials were caused by undecided juries and others by unforeseen circumstances, navigating a path to a verdict proves challenging for defense attorneys, prosecutors and juries alike.

What It Takes to Reach a Verdict

Out of the 35 total non-fatal shooting and homicide jury trials between March 8, when jury trials resumed, and May 31, five jury trials ended in mistrials, four of which were homicide cases, according to Baltimore Witness data.

In their professional experiences, defense attorneys Bradley Shepherd and Brandon Mead said a hung jury is, by far, the biggest cause of mistrials.

“A mistrial is the remedy when something has happened to compromise the integrity and fairness of the trial, and it is now arguably impossible for that defendant to get a fair trial because of what happened,” said Shepherd, who represented homicide defendant Jaquan Burks in a case that ended in a mistrial in early May.

“Lawyers have found millions of reasons for a mistrial over the years,” he said.

Burks has yet to know whether he will be found guilty or innocent despite two jury trials in the past four years. The defendant was first tried in 2019 for allegedly shooting a man outside Haven Place strip club in July 2018. After the trial, he was convicted of first-degree murder among other weapons charges.

The ruling was reversed on appeal nearly a month later.

His case was retried from May 3 to May 9 but concluded when the jury could not reach a unanimous decision.

Shepherd said Burks’ case will likely not see another jury until 2023 due to counsels’ conflicting schedules.

“The vast majority of mistrials are hung juries—juries that aren’t able to reach an agreement,” said Mead, who represents homicide defendant Donnell Johnson, another case hit with a mistrial in late-March. “That is whether that’s one person being difficult [in deliberation] or six people believing one thing and six people believing the other thing.”

Having spent nearly a year and a half behind bars, Johnson went before a 12-person jury from March 28 to March 30 for allegedly killing 27-year-old Kenneth Bivens. What was supposed to determine the defendant’s fate instead ended with a mistrial, leaving Johnson to wait another eight months before his retrial in December.

Mead said when Judge Videtta A. Brown declared a mistrial, he approached a juror afterwards to find out what happened. To no surprise, Mead said, he learned that two jurors felt that if the state’s attorney’s office charged the defendant for the crime, specifically first-degree murder, “then he probably did it.”

“And that’s not what you’re supposed to do as a jury,” the defense attorney said. “You’re supposed to look at the evidence that is presented and if the state hasn’t proven their case beyond a reasonable doubt, you have to have the ability to say, ‘Not guilty.’”

Another ground for mistrial can be created by the prosecution or defense. More commonly, counsel may try or do something inappropriate, such as share evidence that wasn’t disclosed prior to trial, Mead said. This can create a tainted decision from the jury and, therefore, may require a new jury.

A victim’s family member charging the defendant in front of the jury or a defense attorney’s unwillingness to proceed due to a juror’s COVID diagnosis—as were the cases in Darrius Lemar Jordan and Lamont Mealy’s respective trials—are also probable causes to request a mistrial.

And sometimes, there isn’t a complete mistrial, Shepherd added.

“You can get a jury verdict because the jury wants to be done with the trial,” the defense attorney said. “As a juror, you don’t just want to change your opinion because others are doing so. At a certain point in time, jurors get in the room, and they cut deals.”

It is the prosecution’s decision whether to re-prosecute a defendant when a mistrial is declared, which Shepherd said is likely in serious crimes such as attempted homicide and homicide.

More often than not, he noted, juries don’t understand what it means to find someone guilty beyond a reasonable doubt, and in those cases, it is a defense attorney’s job to educate the jury of such high standards.

“Reasonable doubt is a doubt founded upon reason,” the defense attorney said. “Proof beyond a reasonable doubt requires that you would be willing to act upon such a decision in your personal or business affairs without hesitation.”

During his closing arguments in Burks’ trial, Shepherd reiterated this to the jury.

“I asked, ‘If certain witnesses were to come up to you and talk to you about an important matter in your personal and business affairs, would you believe what they had to say without hesitation? Would you act upon their information without hesitation? Or would you very reasonably have some questions about their reliability?’”

Mead said he has found mistrials occurring more frequently, even before the pandemic.

“I think a lot of it is the situation the city is in right now with the massive amount of crime: shootings, murders, and attempted murders,” Mead said. “A lot of the people who are sitting on juries—they hear the news and watch the news. They see what’s happening in the city and they want to hold people accountable.”

On the opposite end of the spectrum, he said, there is significant turnover in the Baltimore City State’s Attorney’s Office.

You have state’s attorneys who are very green and aren’t trained enough to produce the right evidence or get the right people to testify. What you end up having are juries where half of them will be like, ‘Look, the state hasn’t proven their case, so we want to say not guilty,’ and the other half will say, ‘Yes, but we think he did it, so why aren’t we saying guilty?’”

Whether a case is retried sooner rather than later depends on the availability of the court, counsel, and necessary witnesses, Mead said, adding that he has back-to-back jury trials scheduled through the end of the year.

The Baltimore City State’s Attorney’s Office did not respond to Baltimore Witness after multiple inquiries.

Why a Mistrial?

Serving 21 years on the bench, former Baltimore City Circuit Court Judge Wanda K. Heard said a mistrial can be granted for any number of reasons and is related to the manner in which a trial may be conducted.

“There should be an ideal trial from start to finish. Some slight deviations from that ideal are permitted, but some deviations are so egregious that they interfere with a defendant’s right to have a fair trial,” Judge Heard said.

An example of such a deviation includes the shackling of the defendant in the presence of the jury during the trial phase and/or during the sentencing phase.

Two Supreme Court cases, Holbrook v. Flynn in 1986 and Deck v. Missouri in 2005, are examples of how certain scenarios can negatively impact the jury’s perception of a defendant.

In Holbrook v. Flynn, the Supreme Court was presented with the issue from the standpoint of law enforcement sitting in the front row of the courtroom, which may cause a jury to perceive a defendant as a threat or danger. The Court in Deck v. Missouri specifically reviews the use of shackling a defendant in front of a jury, citing that it may only be used when “justified by an essential state interest.”

The Deck v. Missouri ruling found that the visual observation of an individual in handcuffs can cause one to believe that the individual must’ve done something wrong and is, therefore, something that cannot be erased from the individual’s psyche, Heard explained. In an effort to prevent this occurrence, judges will tell jurors to use certain hallways or keep jurors in or out of the courtroom to prevent them from crossing paths with a cuffed defendant.

Reflecting on her four decades practicing law, Judge Heard recalled a trial when this issue came to pass and could have ended in a mistrial.

The judge, counsel, and law enforcement transport agreed to keep the defendant’s handcuffs behind a water cooler and out of the jury’s sight. However, Judge Heard said, she inadvertently referenced the handcuffs in the jury’s presence.

The judge asked counsel to approach as she anticipated the defense’s motion for mistrial, which, Judge Heard said, she would have understandably granted. Instead, she learned that the defense planned to use this reference to inform the jury of the defendant’s year of incarceration prior to trial.

Although there was reason for a mistrial, the trial proceeded and a mistrial was dodged.

Compiled by a committee of judges and law professors, judges are provided with the Maryland Criminal Pattern Jury Instructions; a book consisting of legal statements of law to review the charges applicable to a case as well as instructions on how to deliberate.

While it is a rare request to come from the prosecution, a motion for mistrial is commonly made by the defense, Heard explained, and can happen at any time from the moment the trial commences through the conclusion of jury deliberation.

A recurring problem with mistrials may also be inexperienced lawyers from the prosecution and defense.

For example, prior to trial, a judge will decide what evidence will be admissible. A judge can declare a mistrial if counsel accidentally or purposefully discusses evidence that is not admissible or brings new evidence into the fold once the trial is already underway.

Judge Heard said experienced lawyers, known as second chairs, may sit with new lawyers during a trial to avoid situations caused by inexperience.

“Think of it like training wheels: Somebody is sitting next to you and going through the trial with you, so if you start to do something wrong or you have a question, the second chair will be there,” she said.

Second chairs may also prevent mistrials from occurring, she said, as there becomes less room for error.

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