The Eton Patz Case: Are Allen Charges Coercive?

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Robin Barton

The worst possible outcome in a criminal trial is a hung jury. No one wins.

Both the prosecution and defense must present their cases again. Witnesses must re-testify, which is especially hard on victims who must relive the events once again. New jurors must be selected and hear the evidence anew.

To try to avoid a hung jury, the judge may give a jury that says it’s unable to reach a verdict what is often called an “Allen charge,” named after an 1896 U.S. Supreme Court case, Allen v. U.S.

In that case, a judge in Arkansas instructed a deadlocked jury in a murder trial “that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows…they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other.”

The judge went on to say that it was the duty of the jurors to decide the case if they could conscientiously do so and after listening to each other’s arguments.

If the majority of the jurors were for conviction, explained the judge, a dissenting juror should consider whether his doubt was a reasonable one in light of the fact that it made no impression on the minds of other equally honest and intelligent jurors.

And if the majority were for acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of a judgment that wasn’t concurred in by the majority.

The Supreme Court unanimously upheld these instructions.

Justice Henry Billings Brown explained it this way:

“The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.”

Thus, an Allen charge is essentially a call to the jurors to listen to each other and consider all opinions and positions with open minds.

But can an Allen charge be coercive?

In the recent trial of Pedro Hernandez on the kidnapping and murder of six-year-old Etan Patz in 1979, the jury was ultimately hung, with one juror refusing to convict.

After 11 days of deliberations, the jury sent out its first note indicating an inability to agree on a verdict. At this time, State Supreme Court Justice Maxwell Wiley appropriately gave an Allen charge.

But after four more days of deliberation, the jury sent out a second note that said, “We the jury would like the court to know that after serious, significant and thorough deliberations we remain unable to reach a unanimous decision.”

The judge gave another Allen charge at this time. Should he have? Or was it coercive to order the jurors to continue to deliberate at this point?

Neither side was happy with the Judge Wiley’s second Allen charge.

Joan Illuzzi-Orbon, the lead prosecutor, argued that his Allen charge gave the jurors the impression that any verdict was better than no verdict. And Harvey Fishbein, Hernandez’s lawyer, argued that ordering the jury to continue deliberations after they’d twice declared themselves deadlocked amounted to coercion.

Both attorneys may have been right.

Remember: The purpose of an Allen charge is to ensure the jurors are doing their job, considering all the evidence and listening to each other open and objectively.

In the Patz case, there was every indication that the jurors were doing just that.

For example, over 18 days of deliberations, the jurors asked to rehear testimony from eight witnesses and to have the closing arguments read back to them.

The jurors also asked for permission to use a spreadsheet program and a printer to organize their thoughts. They ultimately created seven spreadsheets, including a timeline of the day Etan vanished and a history of Hernandez’s mental health.

Who volunteers to create a spreadsheet, let alone seven of them?

In many ways, the Patz jurors were model jurors. Their actions indicated that they did listen to each other. In fact, some jurors who’d originally voted for acquittal did eventually change their votes. But the one holdout wasn’t convinced.

Some states have banned Allen charges in the grounds that they are, in fact, coercive. But I do believe such charges can serve a non-coercive purpose.

You don’t want a jury that hasn’t easily reached a unanimous decision to give up prematurely, simply to end the process and be released from duty. In other words, it’s appropriate to discourage them from passing the buck to another group of 12.

But when a jury has been deliberating as long as the Patz jury did and by all appearances taking their responsibility seriously and acting diligently in attempting to reach a verdict, chastising them and ordering them to consider to deliberate is no longer appropriate.

No, a hung verdict isn’t a desirable verdict but sometimes it’s an honest one.

Bottom line: Although it may generally be appropriate for judges to give an Allen charge when a jury is hung, they should be careful not to pressure jurors to cave simply to resolve the case.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.

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