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Posted in Uncategorized on January 24, 2017   |  by Gary Burger

Hung Jury=Mistrial

I tried my second case of the year recently before Judge Cohen in St. Louis county.  It was a hard fought battle against Rufus Tate.  The Judge was kind enough to compliment our lawyering and professionalism at the end of the case to the hung jury (Rufus is a good trial lawyer).  I represent a young woman who alleged she was fired from her job because she was pregnant.  There was no resolution – we will have to try it again.  The judge determined that the hung jury could not reach a decision and declared a mistrial.

After the jury was out for about 4 hours they sent a note to the judge saying they were Deadlocked, 8 to 4 for the plaintiff (my client).  In Missouri state court a plaintiff needs 9 of 12 of the jurors to agree on a verdict.  There is an instruction sometimes called the ‘hammer’ instruction that a judge can read to a jury when they are deadlocked encouraging them to come to a resolution and that the law prefers final decisions in disputes in favor of a hung jury.  This instruction is sometimes read to encourage a hung jury to continue deliberating so that they can compromise and come to a final decision.

However, there is case law discouraging the use of a hammer instruction if the court knows how the jury is voting.  This occurs more often in criminal cases – if the jury is 11 to 1 for guilty and the judge says go deliberate more, the court is kind of asking for a 12-0 guilty verdict.  In our case, although, court did not ask. The jury’s note said they were 8 to 4, and a hammer instruction might encourage a plaintiff verdict.  The judge brought the jury out and asked each if they thought further deliberations would help, and all 12 said no.  So, the judge declared a mistrial.  The jury really worked hard and had a genuine impasse they could not resolve.  We hope to try the case again and get a win.  To be continued.