“I’m going to ask the jurors to return to the jury room and just sit tight for a few more minutes. You’re not to deliberate, just sit there and relax.”
“What’s going on?” says Carl. “Does that mean I’m free?”
“Not yet,” I tell him.
The jury files out.
“I’ll see counsel in chambers. The defendant can go back in the lockup, just for a few minutes.”
The lawyers follow Quinn back to his office, but before he gets there, he stops for a second, tells us to go into the office while he talks with his clerk, Ruiz, just outside the door.
When he finally comes in, he doesn’t take off his robe but flops into his chair.
“Any motions?” he says.
Quinn is inviting Tuchio to make a motion for the dynamite charge.
“We would move that the court issue the modified Allen instruction to the jury, Your Honor.”
This is the polite name, the formal name. Many defense lawyers call it the “dynamite instruction,” because to them that’s what it is-a means to blast recalcitrant jurors, holdouts, into knuckling under and voting for conviction. The instruction in modified forms and variations has been around since the late 1800s and derives its name from the case that coined it, Allen v. United States.
It is generally brief, no more than a page when printed out on paper. In short, what it allows the judge to do is to instruct the jury that the state and the taxpayers have spent a great deal of money and the lawyers and the court have spent a great deal of time and energy to try the case. It also reminds them that if they fail to arrive at a verdict, the case may have to be retried. In effect it’s a mistrial, and that if this happens, it will cost more money and time. After some soothing words assuring the jurors that no one is trying to jimmy them into giving up an honestly held conviction, it ends with the bold statement that it is their duty to arrive at a verdict if they can do so.
Of course, by now all they remember is the last line, the “duty to arrive at a verdict” part delivered to them by God, who has just scowled at them from the bench. Some defense lawyers will tell you of cases in which the jury didn’t even get out of the box and back to the jury room before they voted to convict.
“Your Honor, you heard the jury foreman when you asked him if they could arrive at a verdict,” I say.
“He said he doubted it,” says Tuchio. “He didn’t say they were irreconcilably deadlocked.”
“Yeah, well, that’s a mouthful for anybody,” says Harry.
Quinn reaches into his drawer and pulls out the binder with jury instruction, looking for the page with the dynamite charge.
His clerk comes into chambers behind us and closes the door.
“Your Honor, can I ask you that before you read the charge to the jury-” I begin.
“Just a minute,” says the judge.
Ruiz cups a hand and whispers into the judge’s ear. Quinn swivels around in his chair so that they are both sheltered by the high back of the chair between us.
When the judge finally wheels around ten seconds later or so, he looks at me. “You were saying something, Mr. Madriani.”
“I wanted to ask you that before you read the charge to the jury, if you could one more time talk to the jury foreman to gain some kind of sense as to the real feasibility of a verdict?”
“That’s a fair request,” says Quinn. “Let’s head on back out.”
Eight minutes later the jury is back in the box. Carl is seated between Harry and me.
“The court will come to order,” says Quinn. “Mr. Foreman,” he says.
The jury foreman is back on his feet.
“Let me ask you one more time. If I were to send the jurors back into the jury room for further deliberations do you think they would be able to arrive at a verdict?”
“It’s not likely, Your Honor.” He says essentially the same thing a second time.
Quinn looks out from the bench. “At this time the court is going to declare a mistrial. The defendant is discharged. Mr. Tuchio, you’re free to file new charges.”
“Your Honor! Your Honor!” Tuchio is on his feet, one hand waving behind him at the audience, trying to get them back into their seats. This is like putting the genie back in the bottle. “May I request that the jury be polled?”
“That’s a fair request,” says the judge. “Everybody take your seats. Sit down, please. We’ll be through in just a minute.”
“Am I free?” says Carl.
“You are for now.”
He smiles at me, then turns and looks at his dad, a broad grin.
One by one they stand in the jury box and announce their verdict. Harry is taking notes on the jury sheets, the pages from jury selection, so we will know how they voted.
When they’re finished, Harry doesn’t have to tell us the tally. It is eleven to one for acquittal. The lone holdout, the woman in the jangling jewelry.
You can almost see the relief on Tuchio’s face. He has dodged a bullet by half an inch.
“The defendant is discharged,” says Quinn. “Free to go,” he says.
At least for now, unless Tuchio decides to recharge him. There is no double jeopardy in the case of a hung jury. The prosecution can do it all over again to the same defendant, with the same charges.
“Court is adjourned,” says the judge.
There is pandemonium in the courtroom, reporters leaning over the railing. They want to talk to Carl.
I tell him not to say a word, to keep his mouth shut. Harry takes him by the arm and goes with him back to the lockup and the jail to get his personal items and keep him away from the media.
One wrong word and Tuchio will jump on his back and use it against him in another trial.
At least in terms of a jury, the shock of the Jefferson Letter is past. It is not likely to have the same numbing effect if Tuchio does it over again. He also knows, as I do, that the Jefferson Letter is, without question, a tin-plated phony.
31
Over the phone that night, Harry and I put our heads together and came to the same conclusion, that the magic pill that caused the judge to declare a mistrial was not the declaration of the jury foreman but the whispered message of R2-D2, his clerk, as they huddled behind the judge’s chair in chambers seconds before we came back out.
Quinn had said something to Ruiz as we were first going into chambers to argue over the dynamite instruction. Harry and I will never know, but if we had to guess, the judge had dispatched his clerk to talk to one of the bailiffs who normally usher the jury around. Dirt travels, and people talk. It is not unusual for deputies and bailiffs to pick up smoke signals and drums telling them with some certitude what’s going on behind closed doors.
This is what Ruiz was telling the judge behind the chair. That they were deadlocked eleven to one and that the single holdout had her heels dug in and her position had become a question of pride.
The blond hairs in the envelope presented me with a process of elimination, a question between the two of them, Trisha Scott and Richard Bonguard. If you didn’t think long and hard, you might flip a coin trying to come up with the answer.
I made the long-distance call and left a message with the secretary. Less than an hour later, the secretary called back, a meeting was set. The next day I flew east.
Harry had asked me once what possible reason Bonguard might have to kill the golden goose, his megabucks client Terry Scarborough. Among the theories is that it’s possible he had no choice. He knew Margaret Ginnis. They met at a political function. He thought that Antonin Scalia, the leading edge of the right wing on the Court, was the wit, but he didn’t like his politics. Ginnis held the balance of power on the Court. So when things happened in the islands, who was Margaret to call but her friend, her former agent, her political ally, Richard Bonguard? It was
