[yieldcrv]

The government can do infinite retrials, starving you of resources to maintain adequate representation

I think we need greater protections against this

And the dual sovereignty loophole in our protection against double jeopardy should be addressed as well

[panda-giddiness]

No, they can't. If the defendant is acquitted, that's the end of the line (barring a few dual sovereignty loopholes, as you mentioned, but those also aren't limitless).

[yieldcrv]

If acquitted or convicted correct

But a hung jury can be retried infinitely

I think hung should be just as good as acquittal, or at least ONE other try or something different than potentially infinite retries until the prosecutor gets a tap on the shoulder to move on

[md_]

Plenty of other countries allow conviction by simple or supermajorities.

I'm far from a punitive-justice kind of person, but arguing that a single dissenting juror should be sufficient to acquit strikes me as not at all obvious.

As long as I can convince one in twelve that I'm innocent, I should be considered innocent?

[jxcole]

Having been on a jury in the US one time (attempted murder), the purpose of this system is probably not at all obvious. The idea is to put 12 people in a room and force them to agree to the same thing. You can deliberate almost any amount of time you want. If you try to tell the judge after a single day of delibrations that you are a hung jury, the judge will force you to stay longer. Only in extreme cases where the jury has been hung for a very long time does the judge allow a mistrial.

So the idea is to force 12 people to convince each other of one idea or the other.

[chasil]

In the final play of the Orestia trilogy by Aeschylus, the goddess Athena convenes a jury of twelve citizens to decide the guilt of Orestes in the murder of his mother, Clytemnestra.

The jury is evenly split, and Athena adds a final vote for innocence, calling it her precedent.

It is unfortunate that the United States did not follow this ancient judicial custom EDIT: to acquit if half the jury refuses to convict.

https://en.wikipedia.org/wiki/Oresteia#The_Eumenides

(I live in a midsize U.S. town that happens to have the oldest community theater that performs Greek plays in mask every year.)

[dragonwriter]

> It is unfortunate that the United States did not follow this ancient judicial custom.

Requiring a simple majority of the jury for a serious criminal conviction, but splitting ties for the defense, rather than the US practice of requiring a unanimous verdict for conviction?

[dylan604]

>So the idea is to force 12 people to convince each other of one idea or the other.

You said nothing to contradict the GP. If someone is on trial, all they need is one of the twelve to not be convinced of guilt. Your phrasing of "force" that one person to change their mind is absolutely insane to me.

[md_]

Well, I think the clarification is important. It's not like you just go for a vote, and if there's no consensus outcome, boom, mistrial.

Judges aim for consensus, and juries are intended to debate/discuss until they can reach it. So the complaint about "well, prosecutors can just keep trying" rings a little more hollow in that case.

(Again, there are a ton of other reasonable complaints--bullshit forensic "science", the fact that expert witnesses cost money that defendants don't have, mandatory minimum sentences, federal prosecutors' aversion to risking losses at trial, the awful penal system, etc. But this is a weird one to be hung up on, I think.)

[jcadam]

Having been stuck on several courts-martial panels in the military as well as a civilian jury later for an assault trial, I found the military court system seemed, in many ways, more fair to the accused.

On the flip side, the verdict does not have to be unanimous.

[catskul2]

Just to clarify, in the US at least, juries don't determine innocence, but rather "not guilty", aka, inefficient evidence of guilt.

From cornell law website:

> A not guilty verdict does not mean that the defendant truly is innocent but rather that for legal purposes they will be found not guilty because the prosecution did not meet the burden.

[alasdair_]

As an interesting quirk, Scottish law has three verdicts: "guilty", "not guilty" and "not proven" where the latter is basically "we think you're guilty but the prosecution sucked so we have to let you go"

https://en.wikipedia.org/wiki/Not_proven

This turned out to be a big deal because of the trial of the Lockerbie bombers who blew up a Pan-Am flight over Scotland and were ultimately tried under Scots law. There was a real possibility that the bombers could have gone free with a "not proven" verdict.

[giobox]

While its true Megrahi and co were tried under Scottish law, it wasn't in a court room in Scotland. There are a number of features of how the Megrahi case was tried by Scottish judges in an area of the Netherlands on a US airforce base that was legally declared part of Scotland that are unusual, it was a very unique process that has never been repeated:

> https://en.wikipedia.org/wiki/Scottish_Court_in_the_Netherla...

> https://www.theguardian.com/uk/1999/apr/07/lockerbie

There are aspects of how that trial unfolded that have long been subject of concern even from victims families (Dr Jim Swire famously); politically a "not proven" verdict would have been so unpalatable I'm honestly not sure how much chance there ever was of that occurring - politics is how we ended up in the bizarre Scottish courtroom in the Netherlands situation in the first place. Even the way in which the judges deliberated is not standard for a typical High Court of Justiciary case in its normal home in Scotland.

[phendrenad2]

This reminds me of video games where you can report players for "harassment", "cheating", and "low skill". "Low skill" reports go to /dev/null.

Moral of the story is: Sometimes you need to give people the button they really want to push, even if it does nothing.

[md_]

Of course. I should have said "acquitted", as opposed to a hung jury.

[namelessoracle]

This almost never happens. The jury basically has to not make up its mind for at least a week. (and the judge can keep it going as long as they want) Its almost never just 1 person either. But if one person is willing to hold their ground for a week it means there is something going on. Either that person is a committed ideological actor, saw something, or had some major bias. It takes an immense will to deal with 11 other people for a week straight who all want to go home and get back to their lives, usually if its just one person they give in after a few days to the social pressure. So if a jury hangs it usually points to more than 1 disagreeing. This is where we get into "compromise" verdicts, where maybe 1 person is being stubborn but will go along with the group if they are allowed to win on one point, which is why prosecution throws the kitchen sink at criminal defendants.

[salawat]

>Either that person is a committed ideological actor, saw something, or had some major bias.

...Or they haven't been convinced beyond a reasonable doubt.

You realize as a juror, your job isn't to kowtow to the state. You're literally the last bulwark between said state and your fellow man. If anything, ypu need to be picking hard at any case you get presented, especially if it smells like a political/railroad case.

[namelessoracle]

I would argue holding this stance makes you a committed ideological actor that would get struck during selection if found out.

Not saying i disagree with you....

[yieldcrv]

Who cares about statistics I saw it happen and finally the next presidential administration appointee hit up the prosecutor to stop on or after the third trial

[muststopmyths]

To play devils advocate, if unanimity is required for guilt why doesn’t lack of unanimity mean innocence?

[md_]

Sure, maybe. I guess you can argue two things:

1. That outcomes should be binary, i.e. "guilty" or "innocent" with no mistrials. 2. That outcomes should be decided by unanimous, supermajority, majority, or some other arrangements.

I don't think either of those arguments are especially fundamental. My point was only that it's a bit hyperbolic to view the whole hung jury rule as some sort of Bill of Rights violation.

[jjoonathan]

The high bar for acquittal is what makes the hung jury rule look like a Double Jeopardy problem.

[xhkkffbf]

It gives too much power to one person. It only takes one hold out to hang a jury.

[NovemberWhiskey]

>But a hung jury can be retried infinitely

A hung jury is just one of the causes of a mistrial; and the net effect of a mistrial is that no verdict is reached. The common law has no prohibition on retrying a defendant after a mistrial.

[ClumsyPilot]

well the argument is that if the state is so inconpetent that it keeps mistrying an individual, then that's potentially harrasment of an innosent person and can't be allowed

[NovemberWhiskey]

You get mistrials due to defendant counsel misconduct, or juror misconduct, too.

[salawat]

Given the role of a jury as ground truth to the legal system, it's rather dangerous to hold that a jury can "misbehave".

Jury nullification, as controversial as it is, is an important escape valve and check on the system. Prosecutors and judges just don't like it because it threatens stare decisis.

[chiefalchemist]

I think the point is, while there are limits, most of those will last longer than the resources anyone would have to defend themselves. It doesn't have to be limitless, only a bit longer than anyone can "survive".

[joshuamorton]

This guy got a hung jury on his first trial with a public defender. The government was paying for his defense.

[goodluckchuck]

Only an acquittal, meaning the jury agreed that guilt was not proven beyond a reasonable doubt. One mistrial makes sense. Perhaps there was someone with doubts, but those doubts were unreasonable. Or there was one person who believed the accused was guilty and that person was unreasonable. This could be fixed with a new jury.

After two mistrials (for failure to reach a consensus) it’d appear that reasonable minds may differ and the case must not have been proved beyond a reasonable doubt.

[ianhawes]

Often times, when a mistrial is declared and a retrial occurs, prosecutors will change strategy. Additionally, rulings from the previous trial are not automatically carried over, so suppressed evidence (for example) can be potentially displayed during a trial if the judge rules differently.

Another factor, which is more common in state courts, is the lesser charge consideration. Upon a retrial, the judge can instruct the jury to find a defendant guilty of a lesser crime in lieu of the originally charged crime. For example, manslaughter instead of murder.

Overall it’s obviously stacked against the defendant in federal court. Adding in unlimited retrials basically guarantees a defendant will be found guilty eventually.

[tannhauser23]

The defense also gets to retool its strategy in light of the evidence. Defense also gets to make evidentiary motions. Retrials don't always favor the prosecution.

I think the most retrials I've seen (stemming from hung juries, not reversals) is the John Gotti Jr. case, where he got four mistrials. Prosecutors decided not to seek retrial after that.

[jjoonathan]

Don't you just love how first you learn about the Bill of Rights, and then you learn that there's a bullshit loophole our judicial system uses to bypass every goddamn rule in the entire Bill of Rights?

[willcipriano]

The best part is magically none of these cases make it to the Supreme Court. We have had several decades of open and shut constitutional violations including mass warrantless wiretapping, indefinite detention without trial, civil asset forfeiture, executive order overreach. No ruling on any of it.

[md_]

I mean, there are a ton of problems with the criminal justice system, but white, well-off defendants who can afford non-court-appointed lawyers getting convicted after a single mistrial isn't really top of the list, is it?

I read https://www.newyorker.com/magazine/2022/06/13/the-surreal-ca... and, well, this guy's not exactly a poster child for "the system is out to get you."

I think the "our system is rigged" argument is a bit more compelling when looking at, say, the mandatory minimum sentences for crack possession.

[jjoonathan]

How on Earth is "other people have it worse" supposed to be some kind of counterargument?

No shit other people have it worse. I'd put Speedy and Public Trial and Due Process (Civil Asset Forfeiture) problems as the top of the list, with Double Jeopardy erosion a ways down. Mandatory minimums sound like they belong on the list too, but I'm not familiar enough to know exactly where to place them -- probably high on the list. In any case, one bad thing on a list certainly does not invalidate another bad thing on the list. That's an even more dogshit idea than the loopholes themselves.

> this guy's not exactly a poster child

Standing up for rights means standing up for bastards. Always has, always will, because that's when rights get tested.

[JacobThreeThree]

How is this person's race relevant?

Also, if he represented himself, is he really a "well off defendant who can afford non-court-appointed lawyer"?

[R0b0t1]

They can intentionally mess up the trial, or refuse to prosecute. There are people who get swept up in some old but reopened case investigation launched by a DA that wants to look tough. Trail might have died 10 years ago with essentially an acquittal, but it can be set up so it can be reopened at any point.

[saghm]

I think judges are allowed to dismiss cases "with prejudice" (i.e. not allow for a retrial), and I feel like this _should_ be done if the prosecution purposely punts to try again later, but I'm not sure how often this happens in practice

[spaetzleesser]

"The government can do infinite retrials, starving you of resources to maintain adequate representation"

I remember reading about a guy who had 5 or 6 trials for murder. The prosecutor just kept trying.

[shadowgovt]

You would have to give more details, because in general, that's the very definition of double jeopardy.

Was it five or six hung juries?

[NovemberWhiskey]

https://en.wikipedia.org/wiki/Curtis_Flowers is one example.

Convicted four times, but with conviction overturned on appeal (including one time to the Supreme Court), plus two mistrials. The new DA declined to seek a seventh trial.

[shadowgovt]

Ah, that makes more sense. It isn't double-jeopardy when a conviction is remanded for re-trial (although why it's not is unclear to me in a common-sense sense).

[NovemberWhiskey]

You usually cannot appeal simply on the basis that you believe the jury made the wrong decision, i.e. on the basis of an error of fact.

There has to be an error of law (e.g. the judge have a wrong jury instruction, or evidence was inappropriately allowed/excluded, or the trial was allowed to continue when a mistrial should have been declared) or other constitutional basis, like ineffective counsel.

In some cases, appeal courts will decide that there could be no basis for conviction once the flaw is corrected (in which case a conviction can be reversed), but oftentimes the appropriate outcome is to remand the case back to the lower court for retrial.

[HWR_14]

It was Gotti, leader of one of the mafia families in NYC.