I’ve written (and talked…if you are following my live videos on this topic) about what happens when a jury cannot make a determination about guilt or innocence with 100% certainty. This results in a “hung jury,” which is technically a mistrial. A jury can hang on some charges and not others or it can hang on all the charges; really it just depends on the circumstances. This type of mistrial means the case must be tried again as to whatever count(s) hung.

This is why jury feedback is so important. Our office needs to know what the issues were in order to determine whether or not we should spend the time and resources trying the case again. Usually, we take the feedback in mind and make a offer to the defendant to try and settle the case short of trial. If that gets rejected, or if our office declines to do so, the case get tried in front of a jury again.

Usually, if you are the prosecutor who handled the first trial you will be the one handling the second. Jury trial #14 was a bit different. The prosecutor who handled this particular trial the first time left our office for a new job before this case came back up for trial again. In the meantime, I was moved to cover the assignment and inherited the case having nothing but the transcripts and notes from the former prosecutor’s attempt to get a conviction.

This case involved a bar fight at a local Chico establishment. This particular bar has a bell hung on the wall. Ring the bell, pay for a round. Those are the rules. If a person rings the bell but declines to follow through with the rule, they are escorted out of the building by a bouncer. The defendant in this case, rang the bell but refused to buy drinks. The bouncer tried to escort the defendant out of the bar. After defendant was outside he turned back around and punched the bouncer in the face, breaking his jaw in two different places. Our victim ended up in surgery, ICU and had his jaw wired shut for 8 weeks.

The first time around, the defendant’s statements were not introduced into evidence. This is a common tactic used by prosecutor’s to try and get the defendant to take the stand. In assaultive crimes a common defense is self-defense, but often a defendant will have to take the stand to explain why self-defense was needed. I refer to this as a “Christmas Present” because normally a case doesn’t get any better for a defendant when he takes the stand and subjects himself to cross-examination. It opens him up to discussion of prior bad acts and convictions and subjects him to a level of intense scrutiny by the jury who is watching verbal and non-verbal behavior to see if defendant is credible at all.

However, in this case, it was the lack of key statements made at the time of the incident by defendant that made all the difference. What the jury did not hear the first time was that when the defendant was told he had to leave, defendant told the victim he wasn’t a “punk” and that “it wouldn’t be easy to get him out of the bar.” Our victim placed the defendant in a bear hug and started walking him towards the exit. Defendant struggled, broke free and took a fighting stance. Defendant was then pushed out of the door. The victim then turned his attention to the friends of defendant who had started fighting other bar employees. It was at that time the defendant punched the victim in the face.

The do-over was successful, as my supervisor put it at the time: “This was a second go-around for defendant having previously received a hung jury of 6 for not guilty, 4 voting guilt and 2 undecided. Jessica, not having the benefit of trying the first case, took a fresh approach which resulted in 0 for not guilty and 12 for guilty. Jessica has disprove the old adage that there is no such thing as a felony bar fight.”

There are many tactical decisions to be made when handling a jury trial. Taking a case to trial a second time after a different prosecutor tried it once before showed me that those tactical choices can make all the difference in the outcome. Here, we were able to change things up in a way that resulted in a conviction. But I use this case as a reminder that there is more than one way to try a case; the trick is to chose the right path.

For those of you who are familiar with this local Chico establishment, the bell in question has a plaque under it which reads: “Those who ring the bell in jest, buys a drink for all the rest.” Don’t ring the bell, if you don’t want to follow the rules. And never punch a bouncer in the face.

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