What's next for jury in missing NYC boy case?

Jury has announced twice that it is deadlocked; defense has sought mistrial

By Jennifer Peltz
Associated Press

NEW YORK (AP) - The haunting case of missing first-grader Etan Patz has endured for almost four decades - and deliberations in the long-awaited murder trial stemming from his 1979 disappearance are enduring extraordinarily long, too.

Sixteen days into their discussions, jurors have twice said they can't reach a unanimous verdict and have been told to keep trying. They are weighing murder and kidnapping charges against Pedro Hernandez, 54, who confessed three years ago to killing 6-year-old Etan in 1979; his lawyers say his confession was imaginary and another suspect is the more likely killer.

A look at the issues as deliberations continue:

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WHAT'S HAPPENED?

The jury has announced twice that it's deadlocked, most recently on Tuesday. Defense lawyers have sought a mistrial both times, saying jurors shouldn't be pressed to continue. "This is a tired jury that says it can't reach a verdict, and we asked the judge to respect that," attorney Harvey Fishbein said. Manhattan state Supreme Justice Maxwell Wiley has denied the mistrial requests and advised the panel to keep going, while noting that it's not obligated to reach a verdict. Jurors continued deliberating for several hours after Tuesday's impasse, went home for the night and resumed Wednesday.

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ARE THE DELIBERATIONS SETTING A RECORD?

No. Jurors deliberated for 20 days, for example, before acquitting white separatist Randy Weaver and a co-defendant of killing a federal marshal in a 1992 shootout after a siege at Weaver's cabin in Ruby Ridge, Idaho; his wife and son also died in the gunfire.

In a notorious fraud case against former Tyco International Ltd. CEO Dennis L. Kozlowski and chief financial officer Mark Swartz, a Manhattan jury was entering its 12th day of deliberations in 2004 when a judge declared a mistrial after one juror reported getting an intimidating letter and phone call. Deliberations in a retrial the next year went another 11 days before the ex-execs were convicted of looting the company of $600 million.

Two separate juries deadlocked after more than 18 days of debating the murder case against Lyle and Erik Menendez, two brothers accused of killing their parents in their mansion in Beverly Hills, California (a mistrial was declared in Erik's case in the 19th day and Lyle's on the 25th day, after the January 1994 Northridge earthquake halted deliberations for four days). Ultimately, both brothers were convicted after 20 days of deliberation in a 1996 retrial.

After three former Oakland, California, police officers were accused of beating and framing suspects and falsifying reports, jurors deliberated for 56 days in 2003 before deadlocking on most counts and acquitting on several others. Deliberations in a 2005 retrial spanned more than a month before a jury again deadlocked on most counts and acquitted on others. Prosecutors decided against a third trial for the ex-officers, who called themselves the "Riders."

Civil courts have seen some even more epic deliberations. A federal jury deliberated on and off for more than four months in 2004 before finding for a mother and son who sued Long Beach, California, for refusing to let them convert homes into residences for Alzheimer's disease patients.

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HOW MANY TIMES CAN THE JUDGE TELL JURORS TO KEEP TRYING BEFORE THERE'S A MISTRIAL?

It's up to the judge, who has broad discretion in deciding how to handle a deadlocked jury. But judges have to walk a fine line in balancing the court's interest in bringing a trial to a conclusion with a potential argument, if there's a conviction, that prolonging deliberations amounted to coercing a verdict that should be overturned. There's no hard-and-fast rule for determining that; appeals courts can look at a number of factors, not just the number of times a jury was told to keep trying. "This is a very subjective area ... each individual fact and circumstance will, to a particular appellate panel, have a different meaning," said James Cohen, a Fordham Law School professor who specializes in criminal law.

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WHAT CAN AND CAN'T A JUDGE SAY TO TRY TO MOVE THE JURY FORWARD?

There's been long debate in the legal community about what are known as "Allen" instructions, a term that can encompass a range of approaches to encouraging a stymied jury to keep deliberating. The name stems from an 1896 Supreme Court case that established that it's permissible for judges to tell jurors to continue discussions - and to consider changing their minds, particularly if they're in the minority. Prosecutors unsuccessfully asked Wiley to take that route Tuesday. Defense lawyers often see such language as coercive - some people call it a "dynamite" or "bombshell" instruction - and courts and legal groups have urged caution. Many judges use a modified message, as Wiley has, that includes reminders that the jury isn't required to reach a verdict.

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WHAT HAPPENS IF THERE IS A MISTRIAL?

Prosecutors would decide whether to retry the case, in which jury selection took weeks and testimony more than two months. Prosecutors haven't specified what they would do, but Manhattan Assistant District Attorney Joan Illuzzi-Orbon told the court Tuesday she "would rather have a second trial than a verdict for a verdict's sake."

Published: Thu, May 07, 2015