The Next Best Thing To A “Not Guilty”? The Jury is hung, a mistrial is declared.

Most people have heard the phrase “hung jury” and knows what it means – that a that the jury was not able to come to a unanimous decision as to Guilty or Not Guilty and thus was not able to issue a verdict – but few people understand why a hung jury is the next best thing to a “Not Guilty” in the mind of criminal defense attorneys and, of course, the (accused) defendant.

We at Wigell Criminal Defense recently had the opportunity to hear those words: “It’s a hung jury.” This came from a circuit court judge in Watseka, the county seat of Iroquois County, after a week-long jury trial. And we, along with our client, were thrilled that our hard work had paid off, not with the ideal unanimous verdict of “Not Guilty,” but with the next best thing.

The allegations that lead up to the jury trial are as follows: three adult female accusers (who were minor children at the time) reported to law enforcement that the accused had touched each of them in “inappropriately”.  The incidents were not reported to law enforcement until March 2014.  Each of the adult women gave a video statement to the police and testified at the jury trial.

The state proceeded by way of the Grand Jury and the Grand Jury returned a true bill charging 22 counts of sex charges. The 22 sex charges that the State intended to prove beyond a reasonable doubt at trial included: 20 counts of Predatory Criminal Sexual Assault (PCSA) and 2 counts Aggravated Criminal Sexual Assault.

PCSA is the most serious sex charge available in Illinois.

The accused admitted the wrongdoer to several people on different occasions. Our client gave a detailed confession to his wife, who testified for the Defense and to his brother in law who did not testify. Our client also gave a detailed confession to a DCFS investigator, who testified at trial for the State, as well as to a Detective with the sheriff’s office, who also testified at trial. The Detective memorialized the confession via an audio recording (CD).  The CD containing a recording of our client’s confession to the detective was played three times at trial for the jury to hear. It was admitted into evidence, and it was provided to the jury in the jury room during deliberations so that the jurors could replay it as many times as they wanted to.

To state the obvious, this was a strong case for the Prosecution and not a good case for the Defense. All of the above came out at trial before twelve jurors and two alternates. (The alternates were present during trial but did not enter the jury room for the purpose of joining deliberations.)

It is precisely because this that the “hung jury” is a victory for the Defense.

The jury indicated in successive noted to the judge that it had not reached a unanimous decision. Communication with a jury during its deliberations is very restricted.  The restrictions are intended to protect the process from any outside influences.  If the jury has a question for the judge during deliberations the foreperson writes a note to the judge.  The judge then must call and assemble the Prosecution and the Defense.  The defendant must be present.  The judge then reads the note on the record.  A discussion then occurs that requires consensus or the judge will decide what the response to the note will say.

After the jury returned for the third time, stating that they were unable to reach a unanimous verdict, the judge thanked them for their service and respectfully discharged them, declaring a hung jury and setting a status date for “the dust to settle a bit.” The prosecution then approached the Defense and suggested that they talk. Attorney Raymond Wigell agreed that talking was in order and walked over to the court reporter and ordered the trial transcript.

The State may have been concerned with the mixed signal of talking and the order for the trial transcript.

Wigell mentioned to his client, “I’m beginning our preparation for the retrial.”

And that is precisely why a hung jury is the next best thing to a Not Guilty verdict: a hung jury declares to the State that it did not successfully meet its burden of proof.  It did not prove the charges beyond a reasonable doubt to all twelve of the jurors.  This may put the State in the difficult position of having to make an offer to the Defense or be forced to retry the matter in front of a new jury.  Suffice it to say “the cat is already out of the bag” and the Defense knows the State’s witnesses and much if not all of the State’s strategy.

A hung jury is a victory, any day, for the Defense.


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10.0Raymond G. Wigell
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