Recently, the law firm I work for, Bruckheim & Patel, celebrated a victory in court when our client who was charged with armed robbery in the District of Columbia received a hung jury verdict after deliberation. As an office, we lauded the hard work put in to ensure our client had the best possible defense. However, the celebration was short lived when we realized that our client who just received a hung jury verdict was not yet a free man. Since our client was not declared guilty or not guilty, he was still able to be tried again. I wondered how is this constitutional and what are the rules when it comes to retrying an individual for the same crime who has received a hung jury verdict?
The Curtis Flower Case
An exemplar case that encompasses this idea of retrying individuals who received a hung jury verdict is the case of Curtis Flower. Many people are becoming increasingly familiar with the Curtis Flower case as it is gaining more attention from the media.
If you are not familiar, Curtis Flower is an African American man who has been tried for the same crime six (6) times. The first three trials ended with a conviction that was overturned, and trial four and five ended with a hung jury. Yet, Mr. Flower continues to be prosecuted for a crime he was accused of committing in 1996. How is this possible? The answer comes down to none other than the courthouse’s knights in tin foil, better known as the government prosecutors.
Role of the Prosecutor
I learned early as a college student studying Justice and Law that because the way our criminal justice system is set up, the prosecutor and his office has all the power. Prosecutorial discretion is used often to dictate the sentence and the tone of the case. In addition, prosecutors have the immense power of choosing which cases go to trial and for what charges. Prosecutors can use this power to continue to try cases when there is a hung jury verdict as we have seen with Mr. Flower’s case.
Under the Fifth Amendment of the United States Constitution we have the right to not be tried for the same crime. The Fifth Amendment states, “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. This clause is also known as the Double Jeopardy clause, and ensures that citizens are not unfairly prosecuted under the law. Prosecutors, including the ones in Mr. Flower’s case, argue that this does not violate the Double Jeopardy clause because it is not six trials for the same crime, but rather one trial, six times.
While legally speaking, retrying an individual after a hung jury verdict is not unconstitutional, it does however seem extremely unfair to the individual being prosecuted. During the second and even third trial, the government is able to rework and fix their case to ensure a better verdict. They know what worked and what did not work and change their case accordingly.
Why, even when the prosecution deemed the jury competent, can the government retry individuals? How many hung verdicts does it take for the criminal justice system to say enough is enough, this is unconstitutional and prosecutorial overreach? The question remains unanswered.