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Retrials common across the suburban landscape

Posted August 21, 2010 11:00 pm

Cook County Assistant Public Defender Larry Kugler and Rod Blagojevich's renowned legal team have something in common.

Both recently experienced lengthy deliberations that concluded with deadlocked juries.

In April, a Rolling Meadows jury deliberated the fate of one of Kugler's clients for 12 hours before declaring itself hopelessly deadlocked and prompting a Cook County judge to declare a mistrial. Prosecutors retried the case last month. The second jury deliberated a little more than an hour before returning a guilty verdict.

And there are scores of such examples across the suburban court systems.

Some experts say Blagojevich could experience the same outcome following a retrial on corruption charges.

"In my experience, people do convict the second time around," said former federal prosecutor Joel Levin who retried five or six defendants during his tenure and received guilty verdicts on all but one.

If the jury breakdown significantly favored the government - as it apparently did with Blagojevich jurors who voted 11 to 1 for conviction on several key counts - it is more likely the government will prevail on a retrial, Levin said.

The conviction earlier this month of Internet talk host and blogger Hal Turner underscores Levin's point. Charged with threatening three federal appeals court judges in Chicago for their 2009 ruling upholding the city's handgun ban, Turner had been tried twice before in federal court in Brooklyn, N.Y. Both juries deadlocked on a verdict. However, a third jury convicted Turner after deliberating less than two hours.

Cook County prosecutors report similar results.

"In my experience, the defendants have either pleaded guilty or were tried again and found guilty," said Cook County Assistant State's Attorney Maria McCarthy, supervisor of Rolling Meadows' Third Municipal District.

When a majority of the deadlocked jurors sided with the prosecution, defendants often plead guilty rather than go through a retrial, said McCarthy. Under those circumstances, getting 12 jurors to acquit is an uphill battle, she said.

A deadlocked jury typically forces both sides to review and re-assess their case, attorneys say. To that end, juror feedback is especially important.

"It's always helpful to learn what evidence was most important to jurors and what evidence if any they discounted and why," McCarthy said.

But that doesn't mean either side will significantly alter their approach. In Blagojevich's case, the prosecution evidence seems to have resonated with all but one juror, said Levin, who doesn't expect a major transformation in the government's case. That said, they may try to simplify or condense it, Levin said.

If anything, the Blagojevich case, like Kugler's, reflects the importance of juror selection.

"There's a certain element of unpredictability of jurors," said Scott Slonim, chief of the Rolling Meadows' division of the Cook County Public Defenders Office.

Slonim says the more attorneys know about prospective jurors, the better the system operates. McCarthy agrees.

"Jury selection is the most crucial and most stressful part of a trial, whether it's first-degree murder or a stolen car case," she said.

"As a lawyer, I'm always trying to figure out a better way to select jurors," Kugler said. "I want them to apply the 'beyond a reasonable doubt' standard."

He also wants them to reserve judgment and that's not easy done when jurors bring their own preconceptions and opinions with them into court.

Even the most experienced prosecutors and defense attorneys can never be 100 percent sure about their selections.

For both sides, identifying jurors who will be open to arguments and understand the law poses a challenge, Levin said. Moreover, a single juror can determine a trial's outcome.

"The rule we have requiring unanimous verdicts gives tremendous power to one individual juror," Levin said, pointing to the Blagojevich outcome.

It worked to the advantage of Kugler's client in his first trial. But not in his second, where the jury heard the same evidence and returned swiftly with a guilty verdict. Kugler believes something other than the facts in evidence affected the outcome.

Ultimately, he'll never know for sure.

Daily Herald Staff Writer Christy Gutowski contributed to this report.

Other suburban examples of hung juries:

- A DuPage County judge declared a mistrial May 30, 2007 when a jury failed to reach a verdict after 27 hours of deliberations in a three-day period on whether Wayne resident Luigi Adamo killed John Conrad, 31, of Schaumburg, in a forest preserve in a robbery that netted just $8 in October 2000. A second jury later found Adamo guilty.

- A DuPage County judge declared a partial mistrial April 23, 2004 when a jury failed to reach a verdict after 30 hours of deliberations on whether Ashwani Shamlodhiya was guilty of the Sept. 11, 2001 murder of his West Chicago landlord. Jurors convicted him of arson. A second jury found him guilty of the murder, too.

- A Cook County judge declared a mistrial June 26, 2003 after jurors remained deadlocked for almost 15 hours in suburban horseman Frank Jayne Jr's arson trial. Jayne was convicted in a second trial.

- A Kane County judge declared a mistrial May 29, 2002 after nearly 14 hours of deliberations in a gang-related Elgin triple murder. It was one of a handful of mistrials in the case, but the eight defendants ultimately were convicted of the 1999 murders.

- A Kane County judge declared a mistrial April 26, 2000 after more than 18 hours of deliberations in the case of Lorin Womack, a Bartlett-area man accused of a murder-for-hire plot against a man he suspected of seeing his girlfriend. A second jury convicted him.

- A DuPage County judge declared a mistrial Oct. 26, 1995 after a jury over two days of deliberations failed to reach a verdict for Jose Montanez, then 20, accused of trying to kill an Aurora police officer Oct. 18, 1994. A second jury convicted him.

Source: Daily Herald news reports

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