Last week I wrote about Tim Cahill’s decision to testify in his own defense in his on-going political corruption trial in Suffolk Superior Court. After days of deliberations, the jury found Cahill’s co-defendant Not Guilty and failed to reach a verdict on Cahill. As a result, the judge declared a mistrial. As Attorney General Martha Coakley contemplates retrying the case (a mistrial due to a deadlocked jury does not cause jeopardy to attach so it’s up to the discretion of the prosecutor to try the case again), Cahill claims publicly that the mistrial was a “complete vindication.”

Calling a deadlocked jury a “complete vindication” is a stretch since no one but the twelve people in the jury room knows how the votes were cast. Was it 11 to 1 to acquit, 11 to 1 to convict, or some mix in between? Lawyers go crazy trying to discern the answer to that question. My opinion, for whatever it’s worth, is that Coakley should now drop the case. I don’t want to diminish the importance of prosecuting political corruption and there certainly was incriminating evidence against Cahill, but this is the first prosecution brought under the new 2009 state ethics law and so there are still many questions about what exactly was criminalized by the new statute. Furthermore, I assume Coakley’s prosecutors presented their best possible case so what other evidence would be presented now that wasn’t offered in the first case. Most of all, the fact that one jury could not reach a decision leaves me wondering what another jury would do. Certainly you could keep empaneling juries until you found one to either acquit or convict, but with a “gray area” case such as this, I think it best to take one shot and leave it at that.

Such a line of thinking is at the heart of the instruction Massachusetts judges give to jurors who report themselves deadlocked. The so-called Rodgriguez charge says in essence that there’s no reason to think that 12 other jurors could do a better job so go back, keep deliberating, think about the points made by those with an opposing viewpoint, but don’t surrender your principals.” Lawyers call this the “dynamite” charge because it’s intended to break the logjam in the jury room. For those who haven’t had the experience of being on a deadlocked jury, here’s what the judge instructs in such a case:

Our constitution and laws provide that in a criminal case the principal way for deciding questions of fact is the verdict of a jury. In most cases —
and perhaps, strictly speaking, in all cases — absolute certainty cannot be attained or expected.

The verdict to which each juror agrees must of course be his or her own verdict, the result of his or her own convictions, and not merely an
acquiescence in the conclusion of the other jurors. Still, in order to bring twelve minds to a unanimous result, you must examine the issues you have to decide with candor and with a proper regard and respect for each other’s opinions. You should consider that it is desirable that the case be decided.

You should consider that you have been selected in the same manner, and from the same source, as any future jury would be. There is no reason to
suppose that the case will ever be submitted to twelve persons who are more intelligent, more impartial, or more competent to decide it than you are, or that more or clearer evidence will be produced on one side or the other.

With all this in mind, it is your duty to decide this case if you can do so conscientiously.

In order to make a decision more attainable, the law always imposes the burden of proof on one side or the other. In this criminal case, the
burden of proof is on the Commonwealth to establish every part of it, every essential element, beyond a reasonable doubt. If you are left in doubt as to any essential element, the defendant is entitled to the benefit of that doubt, and must be acquitted.

In conferring together, you ought to give proper respect to each other’s opinions, and listen with an open mind to each other’s arguments. Where there is disagreement, those jurors who are for acquittal should consider whether a doubt in their own minds is a reasonable one, if it makes no impression on the minds of other jurors who are equally honest, equally intelligent, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and who have taken the same oath as jurors. On the other hand, those jurors who are for conviction ought seriously to ask themselves whether they may not reasonably doubt the correctness of their judgment, if it is not shared by other members of the jury. They should ask themselves whether they should distrust the weight or adequacy of the evidence if it has failed to convince the minds of their fellow jurors.

I would ask you now to return to your deliberations with these thoughts in mind.