by Professor Alan Dershowitz

Reprinted from the April 5, 2004 edition of the Wall Street Journal

The mistrial declared in the Tyco case reflects at once a vulnerability and a strength of our jury system.

Because of the unanimity requirement of New York law, one holdout juror may have been able to thwart the will of the 11 others, who were apparently prepared to render a verdict early in the deliberations (reportedly against the defendants on at least some of the counts). Had this case been tried in one of the several states that have abolished the unanimity requirement — a 9-3 verdict is acceptable in some of those states — there probably would have been a conviction days before the mistrial was declared. But New York has retained the unanimity requirement — a requirement that was plainly contemplated by the drafters of the Bill of Rights. (Ignoring the evidence of original intent, the Supreme Court has permitted non-unanimous juries, at least in state cases.)

Had the Tyco case produced a mistrial simply because Juror No. 4, a former lawyer, could not be persuaded that the defendants intended to break the law by their self-enriching conduct, the hung jury would have shown the strength of the jury system and its unanimity requirement. It would have reflected our preference for the non-conviction of the possibly guilty over the conviction of the possibly innocent. (“Better ten guilty go free than even one innocent be wrongly convicted.”) It would have revealed the jury system properly at work, despite the length and expense of the trial. Hung juries — even those with just a single holdout — are entirely proper, if somewhat unsatisfying, endings in criminal cases.

But improper external factors were at work here. The holdout juror was identified by name after some journalists reported that she had flashed an ambiguous OK sign to the defense — a sign the judge and other journalists regarded as “equivocal.” Although the media is entirely free, as a matter of law, to print the names of jurors (as this newspaper did), many have followed a tradition of declining to do so for fear of contributing to pressures on jurors. After Juror No. 4’s name was published, she received threatening or coercive messages. It was these external events that led Judge Michael Obus to conclude that he had no choice but to order what we used to call a “do-over” in Brooklyn. The fact that a six-month-long trial could be rendered nugatory by letters from outsiders demonstrates the vulnerability of our often fragile jury system, especially in this age of pervasive media and instant communication.

It is anything but certain, however, that there will actually be a do-over of this lengthy trial. The message sent to the defendants seems clear: Your defense did not work with 11 of the 12 jurors; you got lucky this time; next time it will probably be unanimous, at least as to some counts; so you had better try to plea bargain. The message to the prosecution is a bit more complex: You may well win at a second trial, but it will cost you a fortune in money and time; and who knows — maybe another juror will be just as persnickety; you, too, should consider a plea bargain.

In fact, many mistrials result in plea bargains rather than do-overs, although this case is higher in its profile than most, and this mistrial did not — at least technically — result from a deadlocked jury. In fact, jurors have told the media that the jury was within minutes of reaching a split verdict, convicting on some counts while acquitting on others. This resolution may well have constituted a compromise designed to achieve unanimity despite the holdout juror’s continuing doubts about the defendants’ guilt. The pressure on her would surely have been raised on appeal by the defendants had there been a guilty verdict on any of the counts. Judge Obus may well have concluded that in light of these external communications, any conviction would be unfair to the defendants because of the possibility that the compromise was achieved by outside pressure on the holdout juror.

Even if no plea bargain can be arranged, it is unlikely that there will be a literal do-over of the first trial. Both sides will have learned important lessons. The prosecution will likely trim its overly bloated case, and the defense may well decide on a different strategy this time around, perhaps keeping Mark Swartz off the witness-stand. (Dennis Kozlowski, the primary defendant, cannot safely testify since he could be asked about state sales-tax charges he faces in connection with art purchases, and having one defendant testify while the other invokes his right to remain silent may raise questions in the minds of jurors.) A second trial, if it were to occur, is likely to be shorter and more streamlined.

In light of the improper external factors that aborted a six-month-long trial, how can it be said that the mistrial here showed any strengths of the jury system? The answer to this question requires a comparison between New York state law and federal law with regard to holdout jurors, as well as a comparison between how Judge Obus handled the difficult situation here with how another judge dealt with a similar high-profile case in the Louisiana federal court.

The defendant in the federal trial was the former governor of Louisiana, Edwin Edwards. Following a several-month trial and nearly a week of deliberation, jurors sent a note to the judge indicating that one holdout juror was refusing to deliberate — a note quite similar to the one sent in the Tyco case. (An alleged refusal by a single juror to deliberate is often a euphemism for the inability of the majority to persuade the holdout to change his or her mind.) In the Edwards case, the government quickly moved to have the juror dismissed so that only 11 jurors could render a verdict.

It was clear there, as here, that the holdout juror favored acquittal, while the remaining 11 were ready to convict. The judge in that case, the Hon. Frank J. Polozola, pursued an entirely different tack from the one taken by Judge Obus in Tyco. Judge Polozola summoned the holdout juror to a hearing that was clearly calculated to find a basis for dismissing him so that a verdict could be rendered. It is not difficult to find such a basis if a judge looks hard enough. In the Edwards case, it was learned that the juror had brought a dictionary as well as some notes he had written to himself into the jury room and had initially denied bringing anything into the room when asked an ambiguous question during the hearing. Though the juror quickly corrected himself, the judge seized on these factors to dismiss the juror.

Such imperfections are common among jurors and would never have led a judge to vacate a conviction after a verdict had been rendered, but they provided the excuse for dismissing a juror who was preventing a verdict from being reached. The 11 remaining jurors quickly rendered a verdict of conviction. (I played no role in the Edwards trial, but I did participate in the post-trial proceedings, which are still pending.)

Judge Obus could probably have found, had he looked hard enough, some excuse for dismissing Juror No. 4. But New York law appears to be different from federal law, in that under New York law, if a juror is dismissed a case cannot go to verdict with only 11 jurors — at least without the consent of the defendant. To his credit, Judge Obus did not in any way try to manipulate the jury system in order to achieve a verdict, despite the understandable pressure to avoid a mistrial in a long and expensive case. In sharp contrast to Judge Polozola, Judge Obus declined to criticize or demonize the holdout juror. Instead, he said that she and her family had been done a “great misservice.”

In treating this holdout juror with respect, rather than with contempt, Judge Obus demonstrated his commitment to the principles of trial by jury even when a fair application of these principles produces a result — or a no-result — that is deeply unsatisfying to a public that was hoping for a more definitive conclusion to a high-profile case.