The Liberty City jury hung for a second time today. Judge Lenard will have a hearing next Wednesday to find out if the government will proceed a third time and if so, when that trial will be rescheduled. Lots of coverage from all the regulars.
I will re-post my questions from an earlier entry:
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, the case will be tried a third time.
Finally, I feel for Judge Lenard. Can you imagine having to sit through the same lengthy trial 3 times. Shoot me now!
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Wednesday, April 16, 2008
Tuesday, April 15, 2008
Allen charged
The Liberty City jury sent another note that they were hung. Judge Lenard gave the dynamite charge, called the "Allen" charge. Here is the coverage of the Allen charge from the first trial.
Here is the text of the pattern Allen charge:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.
Here is the text of the pattern Allen charge:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.
Monday, April 14, 2008
Come see Judge Martinez speak Wednesday
This Wednesday from noon to 1:30 at the Banker's Club, you should come see Judge Martinez speak -- it will be entertaining for sure. Cost is $35; RSVP to Lourdes Fernandez at Lourdes_Fernandez@flsd.uscourts.gov
Sunday, April 13, 2008
Liberty City thoughts
Let's assume this trial ends in a mistrial, like the trial before it did.
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, if there is a hung jury, the case will be tried a third time.
Well then SDFLA readers, should the government retry the case for a third time?
Don't two mistrials demonstrate that the government has a proof problem? [edited to get rid of the double negatives referenced in the comments]. When do we reach that point? After 5 hung juries? 10? I think 2 is the number....
What about bond? If there is a mistrial, and the government decides to proceed a third time, certainly the remaining six should receive bond. Pretrial detention for defendants who haven't been convicted after two trials can't be right.
The court appointed lawyers must be sweating. One of these long CJA trials is enough to cripple a practice, but two back-to-back is almost impossible to come back from. If a third trial were to start up right away, I'm not sure how these lawyers could keep their private practices up and running...
I also feel terrible for the prosecutors trying the case. Their lives have been turned upside by the many months in back-to-back trials. And the decision to retry the case isn't theirs. The decision most likely isn't even being made here in Miami. It probably is being made by some lawyer in DC who won't have to endure 3 trials.
My prediction is that despite all of the above, if there is a hung jury, the case will be tried a third time.
Friday, April 11, 2008
Liberty City jury deadlocked?
The jury sent a note saying they were deadlocked today. Judge Lenard ordered them to keep trying...
Florida Supreme Court Justice Raoul Cantero resigns
A couple of years back we were saying that he might be nominated to the U.S. Supreme Court.
Today, he stepped down citing family reasons. Here's the article.
Today, he stepped down citing family reasons. Here's the article.
Interesting state case
Rumpole has been covering an interesting state case about how far our drug laws really reach. In closing argument, the defense lawyer argued (via Miami Herald):
''The only thing that is clear in this case is that the government is completely abusing its power in applying the law to my client,'' Morris told the jury, to the objection of the prosecution. Circuit Judge Jacqueline Hogan Scola told the jury to disregard the comment.
I love trials and evidence questions -- so I put this to you, my loyal blog readers: is this argument objectionable? Should the objection have been sustained? By my asking the question, I'm sure you know my opinion...
BTW, still no news on Liberty City. This jury has been out longer than LB7. Would the govt try it a third time?
''The only thing that is clear in this case is that the government is completely abusing its power in applying the law to my client,'' Morris told the jury, to the objection of the prosecution. Circuit Judge Jacqueline Hogan Scola told the jury to disregard the comment.
I love trials and evidence questions -- so I put this to you, my loyal blog readers: is this argument objectionable? Should the objection have been sustained? By my asking the question, I'm sure you know my opinion...
BTW, still no news on Liberty City. This jury has been out longer than LB7. Would the govt try it a third time?
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