3.Deadlock Hearing, Mistrial Ruling and SJC Stay

MR. REDDINGTON: Yes.

MR. REDDINGTON: Your Honor, my understanding is that this court has the discretion to have the jury sent back for the second time. The first time that there was a report, we did not treat it as a report of deadlock. We did not instruct them under Tuohy. We did not give them soft Tuohy. We didn't give them anything. We just sent them back to deliberate. So technically, we have one report of deadlock that Your Honor gave the Tuohy/Rodriguez charge to. I believe under the statute, as well as the case law, this court has the ability to send the jury back. The fact that that jury foreperson wrote, very unusually, "It is with a heavy heart that we are unable to come to a decision," based on the earlier questions that we have, I think that it would be a sound and a wise decision for this court to send it back under the law.

MR. REDDINGTON: Well, before you do, I'd like to be heard, Your Honor.

MR. REDDINGTON: Well, I just got to the first one.

MR. REDDINGTON: I didn't get to the other one, so.

MR. REDDINGTON: Your Honor, I would suggest to the court that as we are pretty much all familiar with, under Cameron Reid versus the Commonwealth, the Supreme Judicial Court, through Justice Georges back in February of '25, held that under Rule 27 of the Massachusetts Rules of Criminal Procedure, quote, "Gives a trial judge discretion to require a jury to return a verdict for charges on which they have agreed before declaring a mistrial, as it relates to..." And again, I continue, quote, "Judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded." It goes on further, and I quote, "Rule 27 also permits the judge to poll the jury when a verdict is returned and before the verdict is recorded. However, a judge is not required to accept a partial verdict before declaring a mistrial." So I'm asking that the court would entertain a poll of the jurors as to whether or not there has been a decision on murder one, murder two, manslaughter, anything like that.

MR. REDDINGTON: And if that's the case, then I certainly would argue that double jeopardy is attached, and those charges cannot be prosecuted again.

MR. REDDINGTON: Your Honor, while we're waiting for the jury, forgive me for raising this issue. I would ask that before you formally declare a mistrial, that the court afford us the opportunity to take a 2113 appeal direct to the Supreme Judicial Court, single justice, on this issue because of any number of issues that are of concern, others that have been addressed in the motions, the objections, but I further raise the issue of the American with Disabilities Act. I believe that this is a-

MR. REDDINGTON: … a situation where there is a clear and present danger that this individual, for some reason, what it is we don't know, but is taking a position that's intractable regardless of proof beyond a reasonable doubt. So I want an opportunity to take an appeal to the single justice if the court will afford us that opportunity.

MR. REDDINGTON: I'd have it filed today, and argue tomorrow.

MR. REDDINGTON: They would do it on an emergency, yeah. I mean, I can try.

MR. REDDINGTON: I don't care. They can come back on Sunday.

MR. REDDINGTON: What I'm asking for is time to file a-

MR. REDDINGTON: … single justice appeal for this travesty. That's what I'm asking for.

MR. REDDINGTON: Yes.

MR. REDDINGTON: And the jurors don't have to come back tomorrow. They can be told that they don't even have to come back if I lose the motion, but if I win the motion, then obviously they would have to come back Tuesday.

MR. REDDINGTON: Okay.

MR. REDDINGTON: I understand, Your Honor, and at the risk of incurring the wrath of the court, I'd like to raise an additional issue just for purposes of the federal law, because this, I believe, constitutes a violation of the United States Constitution and federal issue. In our circuit, which is the First Circuit, when a jury reports through a foreperson that amid deliberation that a juror refuses to follow the law, the issue is handled under Federal Rules of Criminal Procedure 23B, but the law itself that we're dealing with clearly indicates that a judge has the authority to excuse a deliberating juror for, quote, "good cause," end quote, and allow the remaining 11 jurors to return a valid verdict and/or with the substitution of one of the jurors that have been waiting, obviously, as alternates. While the First Circuit acknowledges that a juror's refusal to follow the law or instructions constitutes good cause for dismissal, it does impose procedural issues as to how the court would navigate, and which would require a hearing. The core standard is United States versus Sepulveda, S-E-P-U-L-V-E-D-A, First Circuit 1993, and in that case, Your Honor, which is significant precedent, the First Circuit addressed the underlying concept of nullification in a—where a juror refuses to follow the court's instructions. And in the Sepulveda case, the court held that while jurors possess a raw power to acquit for any reason, they have a significant duty, and their duty requires them to apply the law as given to them by the court. If a juror abdicates this duty, it triggers the court's authority to intervene, and the court—

MR. REDDINGTON: ... would then have a procedure where you would inquire just like a hearing, like we were suggesting that the court should have a hearing. So I would suggest, Your Honor, that clearly under the First Circuit law, federal law as well as the argument to the court, Massachusetts law, that we have a juror who has, according to the foreperson, is the only person who is basically holding out, so to speak, and unfortunately they're not holding out based on a good faith issue with the facts or with the law, but they're holding out as a result that even though they have agreed and expressed doubt, they are refusing to apply the law as you've given it. So I would ask again that you conduct a hearing and understand that you're—

MR. REDDINGTON: ... probably gonna deny that.