What Happens if The Jury Can’t Decide the Astor Case?

At the time of this posting, the jury in the already-infamous “Brooke Astor Trial” has been deliberating for over eight days but has yet to reach a unanimous verdict. Thus, at this point, it seems very likely that the Manhattan District Attorney’s Office is facing a potential nightmare scenario: a mistrial. Indeed, from the prosecutor’s perspective, a mistrial in the case against Brooke Astor’s son and her attorney might even in be worse (in some ways) than an acquittal. After all, numerous newspapers and commentators have publicly criticized the prosecution’s strategy and handling of the case. Moreover, the People’s spectacularly long case – spanning over 19 weeks and involving 72 witnesses – has undoubtedly been enormously expensive for New York state taxpayers. Now, the public relations damage incurred by this drawn-out affair is likely to be compounded by a mistrial, which raises the specter of having to do the whole thing over again.

However, the declaration of a mistrial by the judge (the Hon. A. Kirke Bartley of New York Supreme Court) does not necessarily mean that the case would, in fact, be tried over. First, an appellate court would have to affirm the defendants’ appeal of the mistrial order by Judge Bartley. Second, and just as important, the Manhattan District Attorney would have to decide that the case merited a second effort.

Normally, a person is protected against being tried twice for the same crime. See N.Y. Constitution, Article I, Section 6; U.S. Constitution, Fifth Amendment. However, the protections against double jeopardy “may be subordinate to the public interest in seeing that a criminal prosecution proceed to verdict,” People v. Baptiste, 72 N.Y.2d 356, 360 (1988)(citations omitted). A trial judge may order a mistrial when he/she concludes that it is “clear that the jury is hopelessly deadlocked and that there is no reasonable probability it can agree.” In re Rivera v. Firetog, 11 N.Y.3d 501, 506 (2008); Baptiste, 72 N.Y.2d at 360; see also CPL Section 310.60(1)(a). The decision to order a mistrial involves the exercise of judicial discretion and is “entitled to great deference by reviewing courts.” Rivera, 11 N.Y.3d at 507; Baptiste, 72 N.Y.2d at 360. There are few hard and fast requirements or rules for judges to follow in deciding when a jury is hopelessly deadlocked. Nevertheless, a judge is not “free to act without limitation” when it comes to ordering mistrials. Rivera, 51 N.Y.3d at 507. Judges are supposed to consider “the length and complexity of the trial, the length of the deliberations, the extent and nature of the communications between the court and the jury, and the potential effects of requiring further deliberation.” Id, citing Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 251 (1984).

Here, the length and complexity of the case militate strongly in favor of what the judge has done thus far: in response to three notes from the jury indicating that they cannot come to a unanimous verdict, Judge Bartley has refused to relieve them of their duties. Instead, he has offered words of encouragement, tried to nudge them towards a verdict and issued at least one “Allen charge”. Also, there have not been any indications of a “partial verdict” yet, either (meaning that the jury has agreed as to one or some charges, but not all of them), but the judge may be obligated to tell the jury that they can reveal that information if it is true. See Rivera, 11 N.Y.3d at 508-510; see also United States v. Dolah, 245 F.3d 98 (2nd Cir. 2001). Assuming, however, that he does that and the jury nevertheless sends another note or two indicating that it cannot reach a verdict on any of the criminal counts, Judge Bartley would almost certainly have to surrender and declare a mistrial. Obviously, everyone involved in this case is feeling an enormous amount of pressure to resolve this case – one way or another – once and for all. That being said, the court also runs the risk of appearing to coerce jurors into an improper decision if he refuses to ignore many more notes indicating a deadlock. Ultimately though, if Judge Bartley were to declare a mistrial, it would almost certainly be upheld on appeal based on the way he has handled deliberations thus far.

Assuming that the judge does in fact declare a mistrial, the lawyers will informally poll the jurors to determine 1) the final vote breakdown, and 2) what arguments were – and were not – persuasive. (The jurors would be under no obligation to speak with the attorneys after being discharged but a few almost certainly would). If the final vote breakdown heavily favors the prosecution – say, 11 to 1 in favor of conviction – then the prosecutor will have more leverage in a subsequent plea negotiation and also be more likely to retry the case. On the other hand, if several jurors favor acquittal, then we are far less likely to see the District Attorney’s Office force New York taxpayers and jurors to endure another trial. Regardless of the final breakdown, the defense would probably move to have the indictment dismissed by the trial court, Judge Bartley would dismiss the motion, and the defense would then commence an Article 78 proceeding with the Appellate Division, First Department. Compare Rivera, supra. It would then be up to the appellate court to determine whether the decision was proper (with due deference given to the decision of the trial court), and if so, then a second trial would be possible.

It is generally impossible to reliably predict a jury’s final verdict (or assess its collective state of mind) based on jury notes sent from the foreman to the judge. However, in light of the recent communications and the length of the deliberations, I would guess that the majority of the jury wants to convict on at least some of the charges. After all, it is far more common for one or a few jurors to “hold out” against conviction than it is for a few to “hold out” in favor of conviction. Moreover, one juror has recently revealed that she felt threatened by another juror (or other jurors) during deliberations and wished to be relieved of her duties. In all probability, one of the jurors in favor of conviction has become angrily inpatient (somewhat understandably, given the length and at times tedious nature of the trial) with the lone holdout juror that he perceives to be irrationally preventing him from going home and getting on with his life. That being said, this is purely speculative and could be completely wrong… In the unlikely event that the jury decides to reach a verdict, we can reasonably expect it to be a “jury compromise” in which the jurors convict the defendants of some, but not all, of the charges, so that they can finally put the matter to rest and go home.