Why can't a jury acquit on greater and hang on the lesser, part II

Thanks to Paige Nichols, who alerted me to the fact that Jean Gilles Phillips of the Kansas Defender Project won a 2254 petition in Tomlin v. McKune, 516 F.Supp.2d 1224 (D. Kan. Sep 25, 2007). I had blogged about this case in state court long ago here. Essentially, during deliberations, the jury sent out a note that it was 12-0 not guilty on rape, but 11-1 guilty on lesser of aggravated indecent liberties. Trial judge declares mistrial and Mr. Tomlin is eventually convicted of rape. Mr. Tomlin claims that his attorney was ineffective for failure to confirm not guilty verdict on greater charge of rape. Mr. Tomlin lost in state court. The Defender Project has more luck before Judge Lungstrum, who agrees that it was ineffective assistance of trial counsel to fail to confirm acquittal on greater offense where evidence before court was pretty convincing that was the case:

The KCOA essentially held that because there was not a unanimous agreement as to every charge in an offense, no verdict was possible. This is not the view of the Supreme Court in its double jeopardy case law. In Green v. United States, 355 U.S. 184 (1957), the jury found the defendant guilty of second degree murder, which was the lesser included offense in a charge of first degree murder. On appeal, the conviction was reversed and the case remanded for a new trial. The defendant was tried again for first degree murder even though the original jury refused to find him guilty of that charge. The Court concluded that the conviction on the lesser offense was an implied acquittal of the greater offense even though no such express statement was made by the jury.

While distinguishable because the jury was not hung on the lesser included offense as it was in Mr. Tomlin's case, this case is important in the evaluation of whether there was a manifest necessity for the trial court judge to declare a mistrial. The Court discussed that the constitutional protection against double jeopardy should not turn on how charges are listed in an indictment. “In substance the situation was the same as though Green had been charged with these different offenses in separate but alternative counts of the indictment. The constitutional issues at stake here should not turn on the fact that both offenses were charged to the jury under one count.” Id. at 190.

. . . .

Furthermore, the concern about whether the jury is still in deliberations or has reached a final verdict when looking at a jury's written note is simply not present on these facts. The jury in no way indicated that this was a compromise. The writing given to the court around 6:00p.m. stated, “We have all agreed to not guilty to count one, rape, since 3:00p.m. today.” The jury had clearly divided up the count into the corresponding offenses and made its decisions accordingly. This is different than if the jury had not indicated any unanimous agreement on rape before being discharged.

In Mr. Tomlin's case, the Kansas trial court judge did not have to derive any information from the jury not already presented, besides the normal inquiry that is required with every verdict. Before a verdict is published or read in open court there is always uncertainty as the jury is free to change their mind from the decision made in the deliberation room, even if decisions are made as to all counts. Therefore, just as the uncertainty of all potential jury verdicts is resolved by reading it in open court, the possible uncertainty in a case such as Mr. Tomlin's could also be resolved by inquiring whether there is a temporary compromise or a final agreement due to the failure of the state to prove that charge beyond a reasonable doubt.

Because Judge Lungstrum finds that Double Jeopardy Clause prevented retrial on rape, that conviction is vacated, leaving the one conviction and sentence for aggravated indecent liberties with a child.

So what does this mean for the trial practitioner? When you are involved in a case where you have lesser-included offenses and you are looking at a likely hung jury, be sure to ask judge to clarify whether there is a unanimous verdict on any part of the charge BEFORE THE JURY IS DISCHARGED. After is too late. This decision puts that responsibility on trial counsel.

And what about a verdict form that would allow a jury to acquit on a greater, but hang on a lesser? Kansas law has been pretty consistent about not having a not guilty option for the greater and each lesser included offense, but other states do it as a standard practice. So you might request that type of instruction, citing this case.

Nice job to all of the post-conviction counsel who preserved and litigated this issue.