The Ottumwa Courier

February 10, 2014

Deadlocked juries don't produce clear advantage in retrials

By MATT MILNER
Courier staff writer

---- — OTTUMWA — Wapello County has always had a reputation as a tough place to get a conviction. Two mistrials in high-profile murder cases over the past 12 months have reinforced the reputation.

Last spring, Seth Techel’s first trial ended in a hung jury. Earlier this year, Robert Pilcher’s trial ended the same way. In both cases, jurors failed to reach a decision either way, setting the cases up for retrial.

It raises a question: Does a high-profile mistrial alter the prosecution’s approach when faced with a new case in that county?

The Iowa Attorney General’s office declined through a spokesman to comment for this article, citing their plans to retry both cases.

Professor Emily Hughes, a member of the faculty at the University of Iowa’s law school, said there are circumstances where a county’s reputation probably does make a difference. If a charge can be tried in any of several counties, it’s reasonable to think prosecutors might opt to bring charges in a county where convictions are common rather than one in which they have been hard to come by.

But most cases don’t work that way. The vast majority of violent crimes take place in a single location, and that’s where the case must be filed. Does the county’s reputation come into the prosecution’s strategy? That’s unclear.

Hughes said she thinks it, “would certainly enter into their minds,” but that’s different than fundamentally changing their strategy. Knowing juries might be harder to convince and changing the approach in future cases are two different things.

Many felonies involve what the courts call “lesser included offenses.” In some cases juries are allowed to convict on one of those lesser offenses (say, second-degree murder rather than first-degree murder) if they are convinced the defendant committed a crime but aren’t fully persuaded the circumstances match the more serious charge.

A prosecutor might file for a lower charge in an attempt to lower the bar for conviction, but Hughes said that’s not particularly likely. It’s generally much easier to lower the seriousness of the charges than it is to raise it, and charges must frequently be filed before the full prosecutorial investigation is completed.

“There’s some disincentive for them to undervalue their case,” she said.

There’s also no clear answer whether one side generally benefits more from a mistrial. If a defendant testifies in the original trial, prosecutors can use that testimony to pick apart his credibility in a retrial. The defense can do the same with prosecution witnesses.

Then there’s the strain on family members, witnesses who must re-live experiences from the stand and the uncertainty felt by the defendant. All of those factors can have an effect on how jurors view the case.

It’s important to remember that not all mistrials are the same. A mistrial due to an error by one of the attorneys in the case has different implications than one caused by a hung jury. And the circumstances of each individual case make it hard to generalize.

“I don’t think there’s one blanket thing you can say about all mistrials,” she said. “I think that it really comes down to the specific case.”