Shortly before noon, the jury in the Archdiocese of Philadelphia sex abuse case sent a note to Judge M. Teresa Sarmina, saying on their 12th day of deliberations, they were deadlocked on four of five counts.
"Please advise us of our next step," the note concluded.
The judge told the jury to continue deliberating. She offered her assistance to break the deadlock. The judge offered to read back her entire hour-long set of instructions to the jury, known as a charge, which covered the crimes the two defendants are accused of, as well as how to evaluate direct and circumstantial evidence, and the concept of reasonable doubt, among other legal topics.
The judge offered to do read backs on days of testimony regarding Mark Bukowski, the accuser of Father James J. Brennan, along with testimony from Bukowski's mother, and testimony from a former 10-year-old altar boy who was sexually abused by Father Edward V. Avery.
The offer of read backs on the testimony of the three witnesses was a complete reversal of Judge Sarmina's position of last week, when she told the jury she did not want to have days of testimony read back to the jury. "I'm certainly not gonna have the whole trial re-read for them," the judge said as of last Tuesday. But on the day the jury announced it was deadlocked, the judge said that reading back three days of testimony was better than having to retry the entire case.
The jury must be getting used to a judge who changes her mind. Last week, Judge Sarmina told the jury on Thursday night that Msgr. William J. Lynn did not have to have criminal intent to be found guilty of conspiring to endanger the welfare of children. Then, the next morning, the judge told the jury that Lynn did have to have criminal intent to be found guilty of conspiring to endanger the welfare of children.
On Wednesday, the judge gave the jury Thursday off, because of "family matters," but she announced that jury deliberations would resume at 9:30 a.m. Friday.
The jury did not specify in their note which of the charges that they had reached a verdict on. Msgr. William J. Lynn is accused of one count of conspiring to endanger the welfare of children, and two counts of endangering the welfare of children. Father James J. Brennan is accused of one count of endangering the welfare of children, and one count of attempted rape.
The note to the judge said that the jurors were "firm on their votes" except for two jurors on one charge, meaning there was a 10-2 split. One of those jurors might change their mind after re-reading more evidence, the note said, but even if that juror flipped, the jury would still be deadlocked on that one charge, the note said.
Judge Sarmina gave the jurors a standard instruction known as a "Spencer charge," which basically says, go back and give it another shot. But then the judge gave the Spencer charge her own spin, telling the jury that if they couldn't reach a verdict, the case may have to be tried again, at considerable expense and inconvenience.
Alan J. Tauber, a defense lawyer for Msgr. Lynn, objected to the judge's mention of future re-trial as potentially coercive and irrelevant, but the judge didn't agree. Tauber asked the judge to just read the standard Spencer charge from the American Bar Association, but she declined.
The judge's freelancing on the Spencer charge set off defense attorney William J. Brennan, who represents Father James J. Brennan. William J. Brennan asked five times for a mistrial, but was denied each time by the judge.
William J. Brennan charged that the judge had improperly inserted herself into the deliberations. "That was not a Spencer charge, that was a Sarmina Spencer charge," defense attorney Brennan said. "You in effect made yourself the 13th juror."
But the judge overruled him.
When the jury filed back into the courtroom at 4 p.m. after they asked to be dismissed for the day, they looked tired. One juror was yawning, another stared straight ahead with his arms folded across his chest. Some jurors stared off blankly into space, while others watched the judge as she gave her standard instructions about not discussing the case with anybody, and not tuning in to the news media.
"Thank you and I'll see you Friday morning," the judge said.