Last spring, the COA decided Tomlin v. State, a case involving a similar issue. Mr. Tomlin was charged with rape and the judge gave a lesser for aggravated indecent liberties. The jury gave a note to the judge indicating the following:
We have moved to 11 guilty to count 1 of the lesser aggravated indecent liberties and 1 not guilty to count 1 or count 2 due to reasonable doubt. We have all agreed to Not Guilty to Count 1 Rape. Since 3 p.m. today, we have made good progress. However, the one has stated that since we haven't convinced him of his reasonable doubt position that he will never change his mind. We are at an impasse. Most of the Jury feels further discussion will not change his mind.
The district court declared a mistrial and rejected Mr. Tomlin's claim that he should have been declared acquitted of rape. He was subsequently convicted of rape and the conviction was affirmed on appeal because no verdict was ever submitted pursuant to K.S.A. 22-3421 (requiring written verdict read by clerk to the jury) before the jury was discharged.
The Defender Project helped Mr. Tomlin on his 1507 motion, where he claimed that his trial attorney was ineffective for failing to request that the unanimous vote be published as a verdict. Megan Kimbrell, now at Monnat & Spurrier, drafted the motion and did a great job of dispelling the outdated notion that it is somehow impractical to receive a partial verdict of acquittal on a greater charge. She cited case after case from other jurisdictions, including Stone v. Superior Court, 646 P.2d 809 (Cal. 1982), reversing the very precedent cited in a 1975 KSC case as implying that trial courts cannot receive partial verdicts.
But the COA limited the issue in Mr. Tomlin's 1507 proceeding to whether Mr. Tomlin's trial counsel was constitutionally deficient by failing to request the partial verdict. Because the COA held that, partial verdicts are not allowed under the 1975 KSC precedent, it concluded that the trial attorney could not be deficient. The COA explicitly avoided the issue of whether the 1975 KSC precedent is right (which I suppose is a difficult issue for them to get to anyway). Mike Whalen is representing Mr. Tomlin in the 1507 appeal and filed a petition for review, which will likely be decided in the next couple of weeks.
In any case, the cases and rationale that Megan put forward in the 1507 motion are quite persuasive. There is simply no practical reason that a district court cannot accept a jury's unanimous acquittal on a case and retry a defendant only on a lesser. We have implied acquittal's all the time (where a jury hangs on the greater but convicts on the lesser). Even if Tomlin is upheld, it doesn't mean that practitioners can't and shouldn't request publication of the verdict in such a case. In State v. Pugliese, 422 A.2d 1319 (N.H. 1980), quoted by Megan in the 1507 motion, the New Hampshire Supreme Court made it clear that in a case involving lesser included offenses, when informed that a jury may be hung, it should ask whether the jury had reached a verdict on the greater charge:
If the answer had been in the negative, there would have been a basis for the mistrial. If the answer had been that the jury had agreed on acquittal, then the defendant's "valued right" would have been upheld. There was no necessity at all, much less a high degree of necessity, to declare a mistrial before making the inquiry requested. All possible alternatives to a mistrial must be considered, employed, and found wanting before declaration of a mistrial over the defendant's objection is justified.
The benefits of such a process seem obvious to me. First, you reduce the exposure of your client to a greater offense. And, it would change the entire tenor of future negotiations and a future trial. There is no cost or risk to your client if such a process is allowed. So, if you are trying a case that involves a lesser included offense and reach a point where a jury is expressing an impasse, be sure to request that the jury be questioned whether they reached a verdict on the greater offense and, if so, get it published as a verdict. If the district judge won't let you, make the record and try to get some information from one or more jurors regarding the status of the deliberations. I have Megan's 1507 motion from Tomlin and can send it to anyone, if you are interested and Megan also indicated that you could call her to brainstorm.
[Update: the KSC denied Michael Whalen's PR on September 19, 2006].
[Further update: the Federal District Court granted Mr. Tomlin's 2254 motion on September 25, 2007.]
[Further update: the Tenth Circuit reversed the habeas grant, with a dissent, on November 13, 2008.]