Double Jeopardy And The Hung Jury
The People & c v McFadden
Double Jeopardy does not bar a defendant from being retried for an offense on which a jury has previously deadlocked – even where he has been convicted of a related lesser offense under a partial verdict in the first proceedings
The People v. McFadden 2012 N Y Slip Op 08565
Decided: December 13 2012 New York Court of Appeals
Issue: Where a jury has deadlocked on a third degree criminal possession of a controlled substance charge but has delivered a partial verdict, convicting the defendant on an included seventh degree possession charge, can he be retried for the third degree charge?
Holding: Yes. Regardless of the conviction on the lesser charge, the principle of double jeopardy does not apply to the greater charge – (in light of the fact that no verdict has been given on that charge as a consequence of the deadlocked jury).
Facts: Defendant was indicted for criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree in connection with a single transaction. At the initial trial the jury was not instructed to consider these charges in any particular order. During deliberations, the jury sent a not indicating that a juror was asking to be removed from service. The court asked for a reason and a further note was sent indicating that the juror wanted to be excused due to high blood pressure which she stated was being exacerbated by the pressure of having to reach a verdict beyond reasonable doubt – (the juror stated that she thought her ‘individual rights’ were being violated in being required to try to reach a verdict). Defense counsel moved for a mistrial. The People suggested making further enquiries about the nature of the blood pressure problem but this was rejected by the Court.
The jury stated they had a verdict on the seventh degree possession charge but were deadlocked on the other two counts. Defense counsel requested a mistrial as to counts one and two which the court agreed to. The Jury delivered a guilty verdict on the seventh degree possession charge and was then dismissed. Before the second trial, defense counsel moved to dismiss the third degree criminal possession charge, arguing that a retrial on that count would violate the double jeopardy principle. The motion was denied and the Defendant was subsequently convicted on that charge at the second trial. The Apellate Division dismissed the conviction. The Court of Appeals allowed the People’s subsequent appeal, ruling that the retrial did not breach double jeopardy.
Legal analysis: The Court recognized that where a jury is instructed to consider inclusory concurrent counts in the alternative, a conviction of a lesser offense is deemed an acquittal of the greater counts. In certain circumstances however, a defendant effectively relinquishes that double jeopardy claim. For instance in People v Echevarria 6NY3d 89, 92-93 , the Defendant was charged with two counts of first degree murder and two counts of second degree murder without any direction to the jury as to the order in which the counts should be considered and with no objection from defense counsel. During deliberations, the jury sent out a note indicating that a verdict had been reached on two unspecified counts. The court took a partial verdict convicting the Defendant of the second degree murder charges and the next day also took a guilty verdict in respect of first degree murder.
In McFadden’s case as in Echevarria, counsel had not objected to the failure to give proper direction to the jury as to the order in which the offenses should be considered. Indeed, McFadden’s counsel had requested a mistrial after the court had specifically stated that the defendant faced retrial on the top two counts. The case, People v Fuller 96 NY2d 881,  held that a defendant is not precluded from pursuing a double jeopardy claim because he fails to request that the charges be considered in the alternative but in the present case McFadden had, in effect, “charted his own course” by requesting the mistrial and was therefore deemed unable to claim that his retrial is barred.