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

  • Aretha Franklin Reportedly in Hospice Care

    AddThis Social Bookmark Button

    Aretha Franklin, The Queen of Soul, 76, is reportedly in grave condition surrounded by friends and family at her Detroit home. After the news of her "imminent death" broke media outlets independently confirmed the story.

     
  • Beltway Insider: Gun Control Now; North Korea Declares War; Marriage Equality Arguments; Sequester Sting; Easter Celebrations

    AddThis Social Bookmark Button

    President Obama pressed forward the issue of gun control this week as he reiterated his dedication to gun reform vowing to those devastated by the Newtown tragedy that “we would not forget.”

     
  • Designer Parfums Announces Exclusive Fragrance Partnership with Jennifer Lopez

    AddThis Social Bookmark Button

    Prestige beauty company, Designer Parfums, announces a new fragrance partnership with world renowned actress, singer, entertainer and producer, Jennifer Lopez.  Working alongside Dilesh Mehta, Chairman and CEO of Designer Parfums, they will create new brand innovation and strategy to drive global growth.  

  • Molly’s Game Review - Magnificent; Sharp; A Hands Down Winner

    AddThis Social Bookmark Button

    Molly's Game, from STX Entertainment and Entertainment One, brings to the screen the true story of competitive Skier, Molly Bloom, who after losing a spot on the U.S. Ski team, she heads to sunny L.A. for a change.

     
  • Robert Durst Charged With Susan Berman Murder; Extradited to Los Angeles

    AddThis Social Bookmark Button

    Robert Alan Durst, the son of the New York millionaire real estate mogul Seymour Durst, was arrested in New Orleans and extradited to Los Angeles in the execution style murder of Susan Berman, a Beverly Hills writer and friend.

     
  • DJ Caruso Talks Standing Up

    AddThis Social Bookmark Button

    DJ Caruso, director of the “Standing Up” from ARC Entertainment, recently took time from his busy schedule to sit down for an interview to discuss the challenges of making the coming of age family film.

     
  • Anker Innovations Expands Support For Alexa With EUFY, SOUNDCORE, ROAV

    AddThis Social Bookmark Button

    Anker Innovations, a global leader in charging technology and smart, connected consumer devices, across home, entertainment and car, announced at IFA 2018, a suite of new devices that work with or feature Alexa built-in.

     
  • Kubo and The Two Strings Review - Spectacular, An Epic Masterpiece

    AddThis Social Bookmark Button

    Kubo and the Two Strings, from Laika Entertainment and Focus Features, present an ancient tale of epic proportions as a boy and his mother flee from her sinister family who desire to crush the magic that empowers them with greatness.

     
  • Celebrity Interview: Luke Perry Talks On A Swedish Midsummer Sex Comedy

    AddThis Social Bookmark Button

    A Swedish Midsummer Sex Comedy, the light-hearted journey into an endless summer night gone seriously awry, from Coso Nova Films and Elan Entertainment has recently been released, in the United States, for the Home Entertainment Market.

     
  • SF Arts: Then They Came for Me: Incarceration of Japanese Americans During WWII

    AddThis Social Bookmark Button

    Then They Came for Me: Incarceration of Japanese Americans during WWII and the Demise of Civil Liberties is a multimedia exhibition featuring imagery by noted American photographers Dorothea Lange, Clem Albers and Ansel Adams opens January 18, 2019.

     
  • Actor Scott Patterson Evokes Americana Diner Culture With Launch Of Scotty P's Big Mug Coffee

    AddThis Social Bookmark Button

    Paying homage to the Americana diner culture and the universal liquid medium of family and friendship, actor/entrepreneur Scott Patterson, best-known as diner owner Luke Danes on the hit television series "Gilmore Girls," has launched Scotty P's Big Mug Coffee.  

  • CNBC All-America Economic Survey: CNBC’s Steve Liesman: Average Holiday Spending To Top $900, Highest In Nearly 12 Years

    AddThis Social Bookmark Button

    CNBC surveyed 800 Americans across the country in the latest All-America Economic Survey. The results showed optimism about the economy hit 30 percent for a second-straight quarter, the first such occurrence in the survey's history.

     
  • Impromptu Friday Nights Review – Michelin Rated Brilliant; Easy to Follow Reference Guide with Recipes

    AddThis Social Bookmark Button

    Impromptu Friday Nights: A Guide to Supper Clubs, from Morgan Jones Publishing, revives the idea of weekly dining clubs and covers the details for planning, preparation, etiquette, in our technological age, and provides sumptuous, simple, gourmet recipes.

     
  • Chef Jennifer Johnson on How to Cook a Presidential Meal This Weekend (Recipes)

    AddThis Social Bookmark Button

    Chef Jennifer Johnson of Hip Chicks Farms you could say knows food. Her current gig as head chef for Ann and Gordon Getty, calls for her to craft exquisite meals for celebrities, public figures and most recently, President Barack Obama.

     
  • UPDATE/Photos: Eleven Survivors Pulled from Italian Avalanche; Six Confirmed Dead; 23 Still Missing

    AddThis Social Bookmark Button

    First-responders in a desperate race against time are meticulously digging through the mountains of snow covering the Hotel Rigopiano, hoping to detect in the demolished Italian luxury resort additional signs of life even with hope slowly fading.