Mistrial Declared in Etan Patz Child Murder Case - Legal Commentary by Boston Attorney Hank Brennan

AddThis Social Bookmark Button

The Etan Patz murder trial recently ended after 18 days of deliberation in a stunning mistrial that seemed an impossibility as the defendant confessed and provided sick, demented, details of the child's last moments of life.

Inside the jury room, where seemingly normal people jockey for power and control, facts often get lost in the play for dominance

Boston legal scholar Attorney Hank Brennan, former Prosecutor for Suffolk and Essex counties, has dealt with his share of juries from voir dire to verdict.As a former prosecutor, Brennan agreed to provide a legal viewpoint from inside the jury room as to some causes of mistrial.

Q. Obviously, the simplest question, how is this possible? Do you think it is the way in which evidence is perceived? The length of time in between crime and trial, how about admissible confessions?

A. There are many causes for a mistrial. Some reasons for a mistrial are based on a fundamental problem with the jury or deliberation process that infects the jury.

For example, if a juror knew a witness in the case and either failed to disclose their knowledge or recognized a witness after the case already began this potential bias could cause a mistrial.

Another reason for a mistrial could be that an outside source infected the jury during deliberation. This type of mistrial would include jurors learning of inadmissible evidence or tampering by a third party.  

The most common cause of a mistrial is the situation that occurred in the Patz case. Although the word mistrial standing alone has a dubious connotation, a mistrial can be based on the simple fact that all jurors could not agree on guilt or innocence. This is not an uncommon phenomenon.

This type of mistrial does not invoke double jeopardy, thus, the prosecution if free to retry the case if they choose to do so.

Sometimes jurors have committed themselves to guilt or innocence before trial. Other times, personal conflicts between jurors can cause one or many jurors refuse to compromise and remain adverse to each other based on personal issues as opposed to the facts of the case. Sometimes reasonable people simply don't agree.  

Q. In this case a single holdout indicated they did not feel there was enough evidence to convict how did eleven people find enough and one not?

A. The lone hold-out juror provided an interview with the New York Post today.  His commentary and opinion was thoughtful, comprehensive, and seemingly sincere. It is not often that a juror will provide such a candid interview so this jurors thoughts actually helps both sides in the event of a retrial.

The defense will better identify what issues a juror may struggle with and the prosecution can isolate the concerning issues and attempt to improve their evidence on those issues.

The division of jurors has no relevance in a re-trial. It is a trap for an inexperienced lawyer to feel comforted by the jury division in their favor or discouraged by a jury division against them. The next jury is a clean slate and there no value to attaching emotion to the juror breakdown.

Q. What are the next options for the prosecutor?

A. Putting aside emotion, the prosecution will appreciate that they have a viable case if virtually every juror sought to commit. In assessing resources available for a re-trial, likelihood of success, relevance of plea bargaining, and whether putting the victim's family through another trial are all issues that have some relevance to the jury break down.

I expect given the circumstances the prosecution will not hesitate to retry the case. Given the extent of the defendant's alleged mental health illness and his age, I do not think a plea bargain to a lower level of murder is beyond reason.

Haute Tease

  • HL Arts: Noah Buchanan and the Classical Definition of the Divine

    AddThis Social Bookmark Button

    Noah Buchanan uses his extensive knowledge of anatomy to create figurative paintings that celebrate the fundamentals of the classical painting style. No muscle or bone is so small that it shouldn't be seen. His artistic view is to bring an artistic element to an "anatomical event."

     
  • Beltway Insider: Trump/Gov Shut Down, Border/Immigrants, ISIS Attack, Women’s March, May/Brexit, El Chapo, Red Hat Hate

    AddThis Social Bookmark Button

    President Trump and House Majority leader Representative Nancy Pelosi continue to spar over the terms to reopen the longest government shut down in history as more than 800,000 federal employees are poised to miss the payroll deadline again.

     
  • Beltway Insider: Obama, World, EU Reacts to Brexit; Brits Vote Leave; WV Floods; Whitey Bulger; Rio

    AddThis Social Bookmark Button

    President Obama maintained his campaign promise this week and designated the site of the Stonewall Uprising, in New York City’s Greenwich Village, the first National Monument in the fight for freedom to honor the broad movement of LGBT equality.

     
  • Kentucky School Shooting Leaves Two Dead; 18 Injured

    AddThis Social Bookmark Button

    Two students are dead and more than a dozen injured, four critically, after a lone gunman opened fire just as students were arriving for the day at Marshall County High School, in rural Kentucky, authorities have said.

     
  • Children’s Easter Egg Hunt and Easter Brunch at LIVELLO March 31, 2013

    AddThis Social Bookmark Button

    BEVERLY HILLS, CA.—Celebrate Easter and the beginning of spring with family and friends at LIVELLO, the restaurant at L'Ermitage Beverly Hills, on Easter Sunday, March 31, 2013. The culinary team at LIVELLO offers the perfect Easter Brunch menu served from 11:00 a.m. - 3:00 p.m.

     
  • Backcountry - Riveting, an Attention Grabbing Thriller

    AddThis Social Bookmark Button

    Backcountry, from IFC Midnight and Fella Films, presents the perfect outdoor, man verses the nature, horror film a combination of terror, sheer fright, paralyzing fear and gritty determined display of survival instinct and will power.

     
  • United Airline Thugs Drag Doctor from Flight (Video)

    AddThis Social Bookmark Button

    A doctor urgently needed at his hospital was pulled from a United Flight in Chicago, grabbed, and picked up from his window seat by security, and dragged through the aisle, pulled by his arms, sustaining cuts and bruises in the removal.

     
  • Celebrity Interview: Kim Basinger and Anders Morgenthaler Talk On The Journey Making The 11th Hour

    AddThis Social Bookmark Button

    Kim Basinger is a chameleon; in addition to an established talent, an Oscar Winner, she is spontaneous, and still after her Hollywood journey has an honest quality that allows her to throw back her head and laugh with abandon.

     
  • Beltway Insider: Obama/ISIS; Zika Virus; Election 2016; Iowa/NH; NYT Endorses GOP/Dem; Joe Citizen

    AddThis Social Bookmark Button

    President Obama declared February 2016 National Teen Dating Violence Awareness and Prevention Month citing shocking statistics of violence in dating relationships, regardless of gender, race, religion, ethnicity, sexual orientation or socioeconomic status is common and young women most vulnerable.

     
  • Beltway Insider: Obama Speaks at Navy Yard Memorial; President Visits UN; Syrian Deadline; Pravda Prints McCain Op-Ed

    AddThis Social Bookmark Button

    President Obama again reiterated the need for common sense gun control reforms today as he spoke at the Navy Yard Memorial Service eulogizing those killed during last week’s mass shooting.

     
  • Hey, You're That Guy: Actor, Comedian John Ennis

    AddThis Social Bookmark Button

    Hollywood has launched a thousand careers, and among them are the many extremely talented character actors and comedians we’ve watched for years and whose nuanced performances knock us on our asses every time we see them. Just the sight of them elicits responses like, “Hey, I love that guy! Wasn't he in that one movie? You know the one. What is that guy's name?”

     
  • Gloria Bell Review – Strong Performances Attempt to Save Weak Script, Direction

    AddThis Social Bookmark Button

    Gloria Bell, from A24 and FilmNation Entertainment, brings to the screen a story of hope and misplaced trust in the modern age while trying to navigate the singles scene after a painful divorce and a ten-year hiatus.

     
  • Business News: Bob Iger and The Magic of Disney Create Lifetime Loyalty

    AddThis Social Bookmark Button

    Bob Iger, Disney's Chairman of the Board, has a new toy. His acquisition of the Star Wars franchise brought a treasure trove of exciting new gadgets which will soon be available to the masses. For now, he gets the toys all to himself.

     
  • New Horizons Spacecraft Completes Pluto Fly By

    AddThis Social Bookmark Button

    The National Aeronautics and Space Agency, (NASA), in an historic mission, released the first ever photos of Pluto’s surface culminating the nine year effort to bring to the world images and collect data from the furthest planet in the solar system.

     
  • ROOM Review – A Riveting, Challenging, Triumph Over Tragedy Story

    AddThis Social Bookmark Button

    ROOM, from A24, brings to the screen a gripping tale, woven together straight from the headlines with challenging circumstances, a story of hope against all odds, of survival, of reentry, of remembering and discovering, of birth, death and rebirth.