Dallas: Judge speaks after getting note that panelist refuses to vote

By JASON TRAHAN The Dallas Morning News 10/04/07

The judge in the Holy Land Foundation terrorism financing case told jurors to keep deliberating after the foreperson sent him a note Wednesday saying that one of them had essentially deadlocked the panel.

“What do we do when a juror refuses to vote?” the handwritten note to U.S. District Judge A. Joe Fish stated.

Wednesday marked the ninth full day of deliberations after two months of complex testimony on hundreds of pieces of evidence. It was also the fifth day since the jurors had to restart deliberations after one of them was replaced with an alternate Sept. 26 for an unknown reason.

Just before 2 p.m. Wednesday, Judge Fish brought all 12 jurors into the courtroom and gave them a special jury instruction, known as an Allen charge, typically a last-ditch effort to spur long-deliberating panelists to reach a verdict.

The judge reminded the jurors that it is their sworn duty to stick to their positions on guilt or innocence, but they have to participate in the process.

“This is an important case,” Judge Fish told them. “The trial has been expensive in time, effort and money to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and must be tried again.

“Any future jury must be selected in the same manner and from the same source as you were chosen,” the judge continued. “There is no reason to believe that the case could ever be submitted to 12 men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.”

The jurors, who are not sequestered, had no discernible reaction to the new instructions. After Judge Fish finished speaking to the jurors, they were led back into the deliberation room.

Judge Fish then asked attorneys for both sides if they had any objections to his decision to issue the jurors new instructions. Prosecutor Jim Jacks said the government objected to the timing, but attorney Greg Westfall said the defense had no objection. Neither elaborated, and the attorneys in the case are barred from talking publicly about the case.

“It seems like it’s a little early in the game to give that instruction in this case, given the complexity, the large volume of evidence and the fact that they had to start over last week,” said Matt Orwig, a former U.S. attorney in Beaumont who is now in private practice in Dallas. He added, however, that the judge was well within his right to issue the charge.

If the juror continues to refuse to vote, the judge has some options, said Tom Melsheimer, a former Dallas federal prosecutor. The judge can talk to the juror privately or ask the person in open court why he or she is not voting, he said, but this puts the court in an awkward position.

“Judges generally don’t want to do anything that could be construed with interfering with the jury’s right to deliberate,” which could create grounds for appeal, he said.

If the judge determines that the juror is refusing to deliberate, that person could be replaced with an alternate, he said.

Two alternates remain in the case. Typically in state court and on less-involved federal trials, alternate jurors are released when deliberations begin.

However, in complex, expensive cases, judges sometimes keep alternates available throughout deliberations to avoid having to retry the case.

Thank you to the Dallas Morning News for permission to publish this article on a “One-time, nonexclusive, non-transferable copyright basis.”