Judge’s advice to deadlocked jury in Philly clergy case is typical, atypical

The judge in the Philadelphia Archdiocese sexual abuse case wants the jury to keep trying to reach a verdict. After jurors said Wednesday that they were deadlocked on four of five counts, the judge told them to keep deliberating.

So what happens when judges resist a hung jury?

Philadelphia lawyer Michael Diamondstein said the judge’s move is not out of the ordinary.

“In just about any case where a jury is deadlocked, a judge would give a ‘Spencer charge.’ That’s not unusual,” says Diamondstein. “A Spencer charge is an instruction to a jury where a judge is telling the jury to go back, see if you can figure out your differences, see if you can come to a resolution in the case.”

But, Diamondstein said, something else the judge did is not typical.

“It is uncommon for the judge at the end of the Spencer charge to suggest that she would submit certain pieces of evidence to help the jury come to a verdict. That is uncommon,” he said. “What was reported seems to intimate that the judge was leaning on the jury to get a verdict, which most defense lawyers would have a problem with.”

The lawyer for the Rev. James Brennan, who is accused of attempted rape, moved for a mistrial after the judge made her remarks.

The judge’s nudge could offer fodder for an appeal, said Anne Bowen Poulin, a law professor at Villanova Law School.

“If the jury finds the defendant guilty, then the defendant would have to argue that the judge had deprived him of a fair trial, had abused her discretion by forcing the jury to continue deliberating, and forcing them to enter into a verdict that they were not ready to reach,” Poulin said.

The jury did not say which of the five charges it was unable to reach a decision on in the landmark case.

What happens next?

So how many times can the judge encourage the jury to keep deliberating?

Diamondstein said, generally, “if a jury comes back after being charged with the Spencer charge, and says they’re still deadlocked, you would think that most judges at that point would take whatever portion the jury had come to a unanimous decision on, and then hang the jury on the other charges.”

Monsignor William Lynn, former secretary for the clergy, faces three counts for allegedly failing to prevent other priests from abusing children.

The judge told jurors that if they are unable to reach a decision, the case may have to be retried.

By Elizabeth Fiedler