Will Spade, a former Philadelphia assistant district attorney who worked on the 2005 grand jury investigation of the Archdiocese of Philadelphia, says it's a no-brainer.
"I really do think they have to because it's such an important case and because they've staked so much on it," said Spade, now a defense lawyer. "To Seth's credit he's the first prosecutor in America to actually hold the Catholic hierarchy responsible for this stuff. I think there's too much riding on it, so they have to do it."
Spade even volunteered to help the war effort.
"If the jury does hang or there's a less than completely successful verdict, I will volunter to go back to the D.A.'s office and help them out with this retrial," Spade said.
But Fred Tecce, a former federal prosecutor and TV commentator, said in the event of a deadlock, it might be a better to play let's make a deal. Prosecutors and defense lawyers should start talking about negotiating a deal where Msgr. William J. Lynn pleads guilty to a misdemeanor, or a probation offense, Tecce said. He doesn't think it's a smart move to retry the case.
"At that point you look like you're on a vendetta," Tecce said. "Sometimes, discretion is the better part of valor. And the problems that resulted in a hung jury don't go away in the second trial."
Tecce was still in shock over the judge's decision to add a couple of points to a set of instructions known as the Spencer charge, which basically requests that a deadlocked jury go back and take another crack at it.
In addition to the usual charge asking the jurors to reexamine their views, the judge noted Wednesday that if the jurors remained deadlocked, the case might have to be retried at considerable expense and inconvenience.
Tecce thought those remarks by the judge were out of line.
"It's a clear error of law," Tecce said. "There's a standard charge. In essence, the judge is trying to guilt and intimidate the jury into a verdict. That' s not good."
"There's a reason the woman who holds the scales of justices is blindfolded. because she's supposed to be blind to the issues of money and inconvenience," Tecce said. "They are never, ever, ever factors to be considered in a criminal proceeding where the liberty of the accused is on the line as well as the Commonwealth's ability to represent the people."
The jury is scheduled to reconvene at 9:30 a.m. Friday. The judge gave the jury today off because she said one juror had "an important family event" to attend. It may be a good time for a cooling off period, after 12 days of deliberations.
But since the jury is not sequestered, it also means jurors may not be able to avoid overhearing media reports and water cooler commentary today on the deadlocked deliberations in the priest abuse trial. Despite the judge's daily instructions to tune out such diversions, you have to wonder what effect it may have on jurors when they gather Friday morning to decide whether they remain deadlocked, or whether their opinions can change.