Video – Attorney Kirk Tarman Explains Deadlocked Or Hung Jury Procedures In California Compared To The Daniel Penny Trial in New York

Ray Hrdlicka – Host – Attorneys.Media

Hi, welcome to Attorneys.Media, Legal Commentary. I’m your host, Ray Hrdlicka, and today we’re talking with Kirk Tarman, a criminal defense attorney in San Bernardino and Riverside Counties, Southern California, and we’re going to talk about something that’s obviously the hot topic today in the news. And that is… what happens with a jury when they can’t get a unanimous decision.

We’ve got a criminal case that’s going on, Kirk… well, first of all, welcome. We’ve got a criminal case going on in New York right now where the jury hasn’t reached, is unable to reach a verdict. And one of the headlines in the news articles that came out, it said they can’t reach a verdict on the top charge. And you and I both know that there have, when the prosecutor charges a defendant, criminal defendant, he may or may not have multiple charges.

So, I want to pose this question to you. Does a prosecutor throw in… like a shotgun effect? We’re going to throw a lesser charge up there just in case the jury doesn’t find enough evidence to charge at the top charge and then you know the highest level… do we go down a little bit then and does it even go down to a third level or is it you know one shot and everything’s over?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

That’s a good question and it really depends upon the type of case that it is. Many times, the defense attorney wants a lesser charge to be included in the jury trial so that the jury has the ability to fall back to that lesser charge. Sometimes a prosecutor doesn’t want the jury to have that option so that they have either a yes or a no, a binary option. He’s either guilty of something or not guilty of something.

A lot of the time in murder cases you’ll have that. A murder case you can charge… attempted murder, batteries, assaults, you can do voluntary manslaughter. All of these things are something that are all what are called lesser included charges to what we call the umbrella charge, the highest charge.

So, a lot of the times, as a defense attorney, what we do is we know that there is some weakness in the prosecution’s case. We know that a weakness in the prosecution’s case will allow the jury to, or will cause the jury to have some problem with the conviction of that top charge, let’s just say the murder charge. And so, if that weakness is something that we feel allows the jury a true opportunity and a reasonable conclusion of one of these lesser charges, and we’re good with that lesser charge.

The voluntary manslaughter is a significantly less amount of time a person is exposed to if convicted rather than a murder charge. California, it’s life. Voluntary manslaughter, there’s involuntary manslaughter, voluntary manslaughter, each one of those has different reasons why they exist in the eyes of the law. Or significantly less amount of time, you do half time in California with those, they’re not always violent or serious penalties.

So, a lot of times it depends upon the perspective of both parties. Sometimes defense wants those lesser charges in there to give the jury that option. If the defense attorney feels that that’s a good outcome. Sometimes the defense attorney doesn’t want those lesser charges because they feel strongly about being able to win that what we’ll call the higher charge, the top charge. And a prosecution may feel the same. Prosecutor may feel like if the jury has given an option for a lesser charge based upon a number of reasons, sympathy for the defendant, things along those lines, they don’t want to give the jury that option. They want to lock them into having to make hard decision, yes or no, on the one charge.

So, each one of these things is a tactical decision from the defense or the prosecution and whether it’s going to be included.

Ray Hrdlicka – Host – Attorneys.Media

So, obviously the first bite at the apple comes from the prosecutor, depending upon how many charges are filed. But obviously the defense doesn’t have any say in that. They’re just hoping…

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

That’s incorrect.

Ray Hrdlicka – Host – Attorneys.Media

Oh, it is?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Well, oh yeah. If we have a murder case and we believe we have a self-defense, an unreasonable self-defense, which will lower murder down to like a voluntary manslaughter or a complete defense, but let’s just say you have an imperfect self-defense, or heat of passion, for example, is a good way to get a murder down to a lesser included voluntary manslaughter, we, when we go to jury trial, we will make the pitch to the judge that this lesser-included charge should be an option for the jury to find guilty or not guilty on, and that will give them an opportunity to do that.

Because a prosecutor may not believe in the merits of a voluntary manslaughter defense, like heat of passion. They may not, I don’t care about that, but the jury, if you can show that there’s a reasonable basis for it, the judge has to give that to the jury so they can have that legal analysis available to them.

Ray Hrdlicka – Host – Attorneys.Media

So, wait a minute you just said has to that means it’s a must?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

It’s a “must”. If the defense wants it.

Ray Hrdlicka – Host – Attorneys.Media

I see okay so …

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

And there’s a basis for it.

Ray Hrdlicka – Host – Attorneys.Media

Yes, I see that… both of them there. So, in today’s situation in New York, the jury came back and said we can’t come to a decision on the top charge. Now just addressing this top charge… is it common for the jury, well let me let me ask again, this is probably about jury instructions and what should happen there… is it normal for the jury to come back and start saying “hey we got a problem” or again from a layman point of view… I’m not an attorney, you are… so if a jury comes back and says we can’t come to an agreement, isn’t that a hung jury?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

It’s a hung jury unless there’s some of the lower charges, potentially a conviction or a not guilty on. It depends what happens to those lower charges. At the point that there’s a hung jury, which is happening for the one charge, I don’t know the details about any of the lesser charges.

Ray Hrdlicka – Host – Attorneys.Media

Neither do I.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah. The prosecution can disregard everything and just move forward on the top charge, even if there’s a found “not guilty” if he’s found “not guilty”, he’s not going to be recharged on that charge alone unless again the defense wants it but my understanding of this case is we have this Marine who was involved in a fracas with a homeless person who was acting aggressively, so my assumption is… And he basically locked him in a headlock, and eventually the homeless individual passed away. They’re accusing him of murder because somehow he acted in reckless indifference to the person’s life, like a negligent homicide.

Ray Hrdlicka – Host – Attorneys.Media

That’s what they’re saying. It was fine, but then it didn’t become fine after a period of time, exactly.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

And obviously the defense is going to say there was no intent to kill, so that gets rid of the homicide. They’re even going to say potentially it was self-defense because the person was acting in such a manner, which is a complete defense.

So, it’s the intricacies of the case, which is in play. I’m assuming what we’re talking about is the murder charge. There was a hung jury. What happened to the remaining charges we’re unaware of. So, it will be ultimately up to the prosecution whether they want to retry the case, whether they want to charge him with some different things and retry them.

In California, there’s basically, you can get, you only, even with a hung jury, you could get another bite at the apple if you’re a prosecutor. You could charge him again. It’s not indefinite. They can’t keep retrying him if there’s hung jury after hung jury. It’s not indefinite.

And a lot of the time, it really depends upon what the split is of the jury, what the prosecutor’s going to do.

Ray Hrdlicka – Host – Attorneys.Media

That’s what I was going to ask you about because if at a hung jury, I mean,… you’ve got three options, Guilty, not guilty, hung jury, right? So, I mean, I’ve never sat in a jury pool and so I’ve not been picked before. So I don’t know whether or not there is a serious peer pressure to go to either guilty or not guilty, you know, in there.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

It’s one of the big things when we’re choosing a jury that we try to make sure that individuals are not going to be swayed by just the herd and that they’re going to think for themselves. We look for leaders in our jurors and we want multiple leaders, people who will think for themselves, people who aren’t weak-minded, who are just going to go with the masses.

So, of course, I mean, just like every human dynamic and every human interaction with each other, we’re always going to have a problem with this herd mentality.

Ray Hrdlicka – Host – Attorneys.Media

Going back to that question, it seems to me, upon all research and everything I’ve been involved with over the past few decades, hung juries don’t happen very often. Then it either is guilty or not guilty.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Well, hung juries are actually pretty common.

Ray Hrdlicka – Host – Attorneys.Media

Oh, they are? Okay.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

They’re pretty common. And in many cases, it’s still a win for the defense, how you look at it. Obviously, there are some cases where the defense feels that their case is so strong that it should have been a not guilty across the board.

But it does burn one of the stages of a case where the prosecution can’t do this indefinitely. And it is also a clear indication to the prosecution that at least one human being sees reasonable doubt in their case. And one human being seeing reasonable doubt in a case is an indication more can see reasonable doubt. Because many times the prosecution has this one-sided perspective of things and they think the defense is just nuts.

And then finally there’s these people out there that are peers and normal individuals and they believe the defense and so therefore suddenly the prosecution goes, okay, it’s what the defense is saying is potentially sellable or it has some merit.

And like what I was saying before about the apportionment of the jurors. If you’ve got jurors saying “not guilty” and one juror saying “guilty”, that’s a very strong indication to the prosecution they should not retry the case. Usually it’s a mixed bag seven and five, six six, but even then when you get into those kind of situations where it’s… there’s a mixed proportion like that there’s a mixed apportionment regarding guilt and not guilt, it’s still the prosecution will usually move forward.

Ray Hrdlicka – Host – Attorneys.Media

Wait a minute, you said they will move forward and retry?

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Forward with the case. Most of the time they’re going to move forward in a felony cases… misdemeanor cases it’s done, it’s over, but in a case where you have, let’s just call 11 for guilt and one holdout, we call them for not guilt, and they’re absolutely going to be moving forward with the case because they feel like, oh there’s one unreasonable person in that group… somebody who’s not listening to reason but again it depends upon the strengths in the case of the case… how much the prosecution believes in their… the merit of their case and what the wrong was, et cetera, and if there are any victims that need to be looked after emotionally and psychologically, whether they’re going to refile the case and things along those lines.

Ray Hrdlicka – Host – Attorneys.Media

As an attorney, when do you find out… when, while the case is going on, before it’s declared a hung jury, you find out where the jurors are sitting, what percentage what? Oh, that’s what I’m asking.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah, no, the only indication you get of which direction the jury is swinging is by their questions. And it’s very hard to extrapolate from those questions about where they stand. You can sometimes get some indication.

I found early on in my career, it’s best not to speculate too much because you get your emotions set in one direction and it can be swayed and very quickly go in the other direction. But no, the only indication you ever get regarding what’s going on with the jury is with the questions.

And when they come out, occasionally they say, we’re deadlocked. The judge might then send them back, might do a little bit of a questionnaire, how are you deadlocked, what’s going on, send them back to continue their deliberations. And then really at the end, when they basically come out and then they say, we cannot reach a binding here and a verdict. And then the judge will usually go through each one of them and kind of get an indication about where the individuals are standing. And that’s the point you get the apportionment. The information, okay.

Ray Hrdlicka – Host – Attorneys.Media

Well, obviously you mentioned it… just a few minutes ago that hung juries are fairly common. What percentage are, I mean, if you can just guess, cause I know there’s probably no definitive figure.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah, it would be, I’m going to put it at like 10 to 15%.

Ray Hrdlicka – Host – Attorneys.Media

Wow, that is.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Yeah, people having a like mind is hard in this day and age. Right.

Ray Hrdlicka – Host – Attorneys.Media

Yeah, I can see that. And especially if you have different layers, I get that, I appreciate that. Well, thank you very much for speaking with us. Let’s watch this case and we’ll talk again.

Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA

Great, thank you very much, Ray.

Ray Hrdlicka – Host – Attorneys.Media

Thanks, bye-bye.