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

  • F4 Obliterates Moore Oklahoma; Death Toll Stands At 24

    AddThis Social Bookmark Button

    Moore, Oklahoma was decimated when an F4 Tornado with wind speeds of over 200mph cut a two mile wide swath through the city's South side, killing at least 24, injuring hundreds and demolishing everything in its path.

  • The Sound of Summer

    AddThis Social Bookmark Button

    Despite setting my alarm clock every evening, what wakes me isn't the buzzing of some mechanical gadget, but rather the vigilant woodpecker dedicated to his craft right outside my window.

  • OSCARS® Nominations Voting Ends Wednesday, January 8, 2014

    AddThis Social Bookmark Button

    BEVERLY HILLS, CA — Voting for the 86th annual Academy Award Nominations will close on Wednesday, January 8, at 5 p.m. PST. The Oscars Nominations Announcement will be held on Thursday, January 16, 2014, at the Samuel Goldwyn Theater.

  • 76 Countries in Competition For 2013 Foreign Language Film Oscar®

    AddThis Social Bookmark Button

    BEVERLY HILLS, CA – A record 76 countries have submitted films for consideration in the Foreign Language Film category for the 86th Academy Awards®.  Moldova and Saudi Arabia are first-time entrants; Montenegro is submitting for the first time as an independent country.

  • HL Education: College Campuses with The Highest Crime Rate

    AddThis Social Bookmark Button


    When choosing a college most students consider academics, sports, college life, comfort, and post graduate placement percentage, few look at urban campuses verses city life and even less review crime statistics or allow the rise in campus crime to affect the final determination.

  • William Eubank, Talks on The Signal and the Challenges and Fun of Making Realistic Modern Sci-Fi Film

    AddThis Social Bookmark Button

    William Eubank, director of the upcoming Sci-Fi film, "The Signal," a mystery thriller that takes a story that has fascinated for generations, ups the game and walks away with a winner, recently came to New York to promote the film.

  • January Filled with Delicious Decadence from The Sea to the Interior as 2017 Winter dineL.A. Restaurant Week begins

    AddThis Social Bookmark Button

    Southern California cuisine has two distinct personalities: fish tacos and craft beer on one side, celebrity chefs and haute cuisine on the other. California Restaurant Month embraces both from farm and sea to table and exotic fusion Californians love.