Wednesday, June 20, 2012

Hung Jury - Time For The Dynamite Charge?

This guest post is by Beasley Firm attorney Max Kennerly, who regularly blogs at Litigation & Trial.

Eleven days into deliberations, the jury has told Judge Sarmina that they're hung on all but one of the counts. Now what?

That doesn't mean it's over, because the Court can still give what's informally known as a "dynamite" charge and try to move the jury to a verdict one way or the other. Under the century-old United States Supreme Court case, Allen v. United States, 164 U.S. 492 (1896), the Court may admonish the jury to keep trying, and can ask jurors to reconsider their positions. In Pennsylvania, the charge is known as a Spencer charge after the main case applying it here, Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), which incorporated American Bar Association standard 15-5.4. That standard says:

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section (a). The court should not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
The core concern in giving a Spencer instruction is to ensure the jury doesn't feel coerced by the court to reaching a verdict one way or another. The charge cannot, for example, "instruct the minority jurors to yield to the majority," nor instruct that "the majority [] need not re-examine their position." Commonwealth v. Schaffer, 2005 PA Super 14 (Pa. Super. Ct. 2005). The point of the charge is to make sure everyone has thoroughly considered the issues and so has reached a fully informed and honest belief as to the evidence.

We can expect Judge Sarmina to grant a Spencer charge here, perhaps after trying other options like further explaining certain legal issues, if she believes the jury might be stuck on their understanding of the jury instructions. By this point, though, the jury has probably heard enough about the law of child endangerment; they're likely stuck on factual interpretations, most likely Monsignor Lynn's state of mindThe defense lawyers will inevitably object to the Spencer charge, as would be proper to preserve their appeal options, but the charge will likely be given nonetheless as a last resort. 

Importantly, a hung jury does not necessarily benefit Monsignor Lynn. As the United States Supreme Court has repeatedly affirmed, most recently in Yeager v. United States, 129 S. Ct. 2360 (2009), the "double jeopardy" clause of the Constitution does not bar re-trial of a defendant where the prior trial ended in a hung jury:
[W]hile the defendant has an interest in avoiding multiple trials, the [Double Jeopardy] Clause does not prevent the Government from seeking to reprosecute. Despite the argument's textual appeal, we have held that the second trial does not place the defendant in jeopardy "twice." Richardson v. United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); see 3 J. Story, Commentaries on the Constitution § 1781, pp. 659-660 (1833). Instead, a jury's inability to reach a decision is the kind of "manifest necessity" that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. See Arizona v. Washington, 434 U.S. 497, 505-506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). The "interest in giving the prosecution one complete opportunity to convict those who have violated its laws" justifies treating the jury's inability to reach a verdict as a nonevent that does not bar retrial. Washington, 434 U.S. at 509, 98 S.Ct. 824.
Id. If it's a hung jury, the only question is if the Philadelphia District Attorney declines to re-try Monsignor Lynn. That's possible, but in my opinion unlikely.


  1. Damn! I just knew this was going to happen. What is it with hung juries lately. No one can ever seem to make a decision. It's getting ridiculous. And it is a huge waste of time and money. Somehow I knew they wouldn't convict him. What a shame and a travesty.

  2. There was more than enough evidence there to convict, so there had to be at least one Catholic to keep them from convicting. I could just scream. I'm so sick of this church getting away with the horrendous things they have done.

  3. Speculation time:

    My guess is there is one 'guilty': Rev. Brennan on child endangerment.

    Anybody else?

  4. This waiting has got to be extremely difficult for all the victims of clergy abuse.

    I hope they are taking deep breaths, and knowing that their voices are being heard, and the judge has not given up on getting a verdict.

    Judy Jones, SNAP Midwest Associate Director, 636-433-2511
    (SNAP, the Survivors Network of those Abused by Priests)

    1. Judy their "voices are being heard?" By who? Horton?
      Really? Really?
      Judy where have you and SNAP been all our lives? Just constantly giving us victims courage to go on. How did we do it without you?

  5. @#$%^&*( !

    Like Belinda said, it only takes one. Can't wait to hear the story of what went on in the jury room.

  6. I personally feel that anyone who is still Catholic is now complicit in the cover up. They continue to minimize the scale of the abuse and use their money to protect the abusers. I will never understand how anyone can walk back in that church. It turns my stomach just to drive past one. No, Judy, the victims voices aren't being heard. They are being shushed and the creeps are still walking away. Then they have the nerve to continually assert their moral authority. What a joke. The whole lot of them should be in jail, from the pope on down.

    1. Belinda, I can't help but feel the same way. As someone raised in a devout catholic home, who attended a convent boarding school and who now describes myself as a "recovering catholic", I simply cannot imagine how any thinking person can continue to support or event tolerate this institution. Where were the millions of good catholics when the first stories about this systemic cover up began to break? Why were they not marching in the streets, turning in all abusers to police, and demanding criminal charges against both the predator priests and those who protected them? Church members who sat by and did nothing are as guilty as Monsignor Lynn and every other cowardly church official who looked the other way.

  7. clearly when you had over 63 priests who each had multable victims and the only concern was the reputation of the church in order to sustain the palatial matrialistic lifestyle then collusion did exist along the ladder of california a victim is on trial for vigilante justice after his brother and himself ages 4 and 8 at the time were forced to commit fellatio on each other.sentence lynn and brennan to the maximum allowable under the lae.



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