Thread by @aburkhartlaw

Ok, I've been sorting through Mass. law to get a sense of what happened this morning and this thread will address what I've found. Bottom line: So far, it's unlikely that there has been any appealable error.

When a jury can't reach a unanimous verdict, courts can instruct them to continue their deliberations so long as the instruction to do so does not coerce a verdict. This rule derives from US Supreme Court precedent in Allen v. U.S.

Under MA law, there is a form instruction called a "Tuey-Rodriguez" instruction (named after 2 cases that generated it) to be given if, after due and thorough deliberation, the jury is deadlocked. You can read that instruction here: mass.gov/files/document…

MA law also has an interesting quirk that the jury cannot be sent back a second time to deliberate after they have deadlocked following due and thorough deliberation. This rule is statutory, from G.L. c. 234 § 34:

Note, however, that these rules only apply if there has been "due and thorough deliberation." This is why Judge Bev specifically found that there has *not* been due and thorough deliberation at this point.

Under MA law, the determination of whether deliberations have been "due and thorough" is discretionary with the court, meaning it's only overturned if it is patently unreasonable. The bar there is very high.

So, this means that Judge Bev has not yet initiated the "last chance" sequence that requires the Tuey-Rodriguez instruction or limits her ability to send the jury back again to continue deliberations if they repeat that they are deadlocked.

Notably, however, the judge can still run afoul of the restriction against coercing a jury verdict by refusing to release them in a reasonable time or by placing pressure on the minority to abandon their convictions. Coerciveness is a "totality of the circumstances" test.

At this point in time, there does not seem to be a viable appeal argument that what has been done is error. However, the longer the jury is out without making progress, the less likely it is that the judge could order them to continue without creating a coercive environment.