How Many Times Can DOJ Try a Case After a Hung Jury? DOJ “Jury Shopping” for a Conviction

By Sara Kropf

For the government to win at trial, it must convince all 12 jurors to vote guilty. For the defendant to win at trial, he must convince all 12 jurors to vote for acquittal. If there is an acquittal, then the case is over, and the government cannot try again.

When the jury cannot reach a unanimous verdict, it’s called a hung jury. The court will grant a mistrial. This is generally considered a “win” by defense lawyers, because it is extremely difficult to win a complete acquittal.

However, if you think a mistrial is the end of the case, you’d be wrong.

After a mistrial, the government can decide to take the case to trial a second time. Let’s say the second jury also cannot reach a unanimous verdict and the court grants a second mistrial. Well, the government can keep taking the case to trial—in theory—until a jury reaches either a unanimous acquittal or a unanimous guilty verdict.

The Chicken Price-Fixing Case

That is what has happened in a criminal antitrust case in Denver, Colorado about alleged price-fixing in the chicken-processing industry. This is a massive case with ten defendants. There was a hung jury the first time around. The government tried the case a second time. There was a second hung jury and a second mistrial. The government at this point dismissed the charges against five of the ten defendants. But it’s doubling tripling down on the remaining five and seeking to try them a third time.

These are not short trials. They are multi-week trials in federal court, eating up the time of the judge, the court staff, jurors, lawyers, and the people on trial. Trials are expensive. When I’m in trial, I’m regularly working 14 hour days for the month before trial and the entire time I’m in trial, including weekends. Multiply those hours by hourly rates in the $700 to $1200 range, and you can only imagine how much these clients have paid.

The judge is clearly frustrated at DOJ for seeking a third trial. He ordered the head of the Antitrust Division to show up to justify its decision to try the case a third time.

What About the Double Jeopardy Clause?

You may be screaming, “but, Sara, what about the Double Jeopardy Clause? Doesn’t that stop the government from trying the same case a second time?”

The Double Jeopardy Clause of the Fifth Amendment sounds so good: “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb”. Unfortunately, the United States Supreme Court held in United States v. Perez, 22 U.S. (9 Wheat) 579 (1824), that when a criminal trial results in a hung jury, the Double Jeopardy Clause does not stop the government from trying the case again.

Could the Court Stop the Third Trial?

There are two ways for the court to put an end to this third trial.

First, it could grant a motion for judgment of acquittal filed by the defense and find that there was insufficient evidence to convict the defendants at the second trial. Under Rule 29, the defense can make a motion for judgment of acquittal or MJOA. For most cases, this is a pro forma motion, meaning that it never wins. Defense counsel make the motion at the end of the government’s case and at the end of the whole case, arguing that the court should enter a judgment of acquittal for the defendant because there is not enough evidence to convict.

Courts almost always deny these  motions, sometimes with just a few minutes of argument. However, under Rule 29(b), the “court may reserve decision on the motion [for judgment of acquittal], proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.”

The defense in the chicken case made this motion during the second trial. So, the judge could decide to grant the motion and acquit the defendants.

Second, and much less likely, the court could exercise its inherent authority to prevent a retrial This exercise has been severely restricted. The Third Circuit held that “a court may dismiss an indictment based upon its inherent authority only if the Government engaged in misconduct, the defendant was prejudiced, and no less severe remedy was available to address the prejudice.” United States v. Wright, 913 F.3d 364, 371 (3d Cir. 2019). I haven’t read anything about allegations of government misconduct in the chicken case, so even if the court there adopted Wright’s reasoning, it is a long shot.

The Unfairness of Multiple Trials

In Arizona v. Washington, 434 U.S. 497 (1978), the Supreme Court reasoned that “even if the first trial is not completed, a second prosecution may be grossly unfair.” Id. at 503-04. It went on to explain:

It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.

Id. This echoes the Supreme Court’s description of the turmoil caused by multiple retrials in Green v. United States, 355 U.S. 184, 187-88 (1957):

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

I’ve only found a very few decisions where a court prevented a retrial: Untied States v. Ingram, 412 F. Supp. 384 (D.D.C. 1976) (dismissing indictment after defendant tried twice for bank robbery, saying that this “not a case of double jeopardy . . . [i]t is simply a matter of fair play.”); United States v. Rossoff, 806 F. Supp. 200, 202-03 (C.D. Ill. 1992) ( “Government should not be given continued bites at the apple in the hopes that a conviction will eventually result.”).

Trials are stressful and time consuming. They require jurors to be away from their families and jobs. And they are extremely expensive. For so many defendants, it’s a stretch to pay a lawyer for one trial. Two or three trials is simply unfathomable.

When there is a hung jury, the most common outcome is for the government to offer some sort of plea deal to resolve the case. Our clients will feel pressure to take it—the combination of the financial pressure and the realization that it takes a lightning strike of good luck to pick two juries willing to fairly evaluate the evidence and hold out for acquittal.

Courts Should Pressure DOJ Not to Retry Cases

I appreciate and applaud the judge in Colorado who demanded that the head of the Antitrust Division come to court and explain why it thought it could win the case if it had a third chance. DOJ prosecutions are guided by the Justice Manual, which says in Section 9-27.220:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.

If DOJ has already lost one time—with all of its advantages throughout the process—then it should have to justify why it still believes that the evidence “will probably be sufficient to obtain and sustain a conviction.” The judge in Colorado was right to press DOJ leadership as to why it believes this to be the case.

What’s that definition of insanity again?

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