New York Federal Criminal Practice Blog
September 13, 2007

Double Jeopardy Claim Prevails in Unusual Case of Precipitous Grant of Mistrial

Defense lawyer’s dilemma: The prospect of a mistrial looms. Do you ask for it so that your client survives to fight another day? Do you oppose it only to have the jury return later with a verdict of conviction? Two brave lawyers chose to oppose a mistrial unless the supposedly deadlocked jury was polled, and as a result, won a stunning victory two weeks ago from the Second Circuit on their double jeopardy claim. The facts of United States v. Razmilovic, 2007 WL 2409919 (2d Cir. August 27, 2007) are highly unusual, not to mention electrifying reading, but the case is significant because in it, the Second Circuit lays out for the first time the factors it will consider in reviewing a district court’s determination that a jury was genuinely deadlocked. The case also gives practitioners an opportunity to ponder the applicable law and available strategies for that adrenalin-producing moment when the jury sends back a note saying it is at an impasse, and the district judge looks to the parties for guidance.

Razmilovic was a securities fraud and mail fraud prosecution of senior officers of Symbol Technologies, Inc. Three of the officers, Kenneth Jaeggi, Michael DeGennaro and Frank Borghese, stood trial in the EDNY early in 2006 before Judge Leonard Wexler. After a trial that lasted six weeks and involved the testimony of forty witnesses, the jury deliberated for four days over a seven-day period before sending out a late afternoon note saying it was “at a deadlock,” had “exhausted all [its] options” and “We are ready to go home today.” Just two hours earlier, the jury had sent out a note asking if each count in the twenty-five count indictment required a unanimous decision. After sending the jury home with instructions to return the next day, Judge Wexler announced that he planned to continue deliberations as usual unless any party wanted him to declare a mistrial. Counsel for Jaeggi moved for a mistrial; counsel for DeGennaro and Borghese asked that the jury be polled before any decision on the mistrial motion be finalized (although there is some dispute about the timing of Borghese’s request for polling); and the government opposed both a mistrial and polling. After a recess, the judge declared a mistrial, repeatedly denied subsequent requests by lawyers for DeGennaro and Borghese that he first poll the jury, and directed his courtroom deputy to alert the jurors by telephone that their two-month service was over. DeGennaro and Borghese moved to bar retrial under the Double Jeopardy Clause. Judge Wexler denied the motion, in light of the jury’s “unambiguous note that it was genuinely deadlocked.”

A mistrial may be declared in circumstances of “manifest necessity,” the classic example of which is the “genuinely deadlocked” jury. In finding that Judge Wexler’s declaration of a mistrial was an abuse of discretion, the Second Circuit delineated for the first time an inexhaustive list of factors, gleaned primarily from decisions in other circuits, to guide its review of a determination that a jury was “genuinely deadlocked.” These include (a) the actual statements from the jury; (b) the length and complexity of the trial; (c) the amount of time the jury deliberated; (d) the impact of further, forced deliberations on a possible verdict; and (e) and what actions, if any, the trial judge took prior to determine if indeed the jury was truly deadlocked, including the alternatives the judge did not to pursue. In Razmilovic, the only piece of evidence of deadlock, as the Court pointed out, was the jury’s note. It was not hard for the Court to conclude that this was simply insufficient on its own to support a finding of “genuine deadlock,” in the absence of any further discussion with the jury, and given the length and complexity of the trial, as well as the relatively brief period of deliberation, and particularly in light of the district court’s failure to pursue several actions short of declaring a mistrial – such as instructing the jury to continue deliberations, polling the jury, giving the jury an Allen charge (also known as the “Dynamite” charge) and instructing the jury about the possibility of a partial verdict.

In reaching its decision, the Court thankfully explicitly rejected a defense proposal to adopt a per se rule for multi-defendant cases requiring that a trial judge poll the jury prior to discharge to determine that the deadlock is intractable. While polling would have worked to the defendants’ benefit here (see below), we see no benefit to depriving defense lawyers of an opportunity to argue against the practice in a particular case.

In addition, and quite rightly, the Court also rejected the government’s claim that Borghese had deliberately waived his rights under the Double Jeopardy Clause, when his counsel allegedly initially joined in Jaeggi’s motion for a mistrial (Double Jeopardy usually is not operative where the defendant consents to the mistrial). Pointing out that within seconds of the district judge’s declaration of a mistrial and prior to the actual discharge of the jury, Borghese’s lawyer clarified that he wanted the jury polled first, the Court refused to allow the government to capitalize on what was obviously “a harried period in which all the parties were struggling to formulate their positions in response to the unexpected turn of events.”

There is a certain poetic justice to the decision. The day after the mistrial, DeGennaro’s counsel had advised the district court that he had learned that the jury had only deadlocked on defendant Jaeggi. It had unanimously agreed that DeGennaro and Borghese were not guilty. Kudos to their lawyers for reading the tea leaves correctly

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